Legal regulation of family relations in Ukraine and the Republic of Latvia: comparative and analytical research

Introduction

Family is "the most antient socio-legal institution, and its impact on human existence is difficult to underestimate" (Revutska, 2018). Significant amendments to and reforms of family legislation seen in 2004 due to the entry of the Family Code of Ukraine into force as well as further law-making processes resulting from the development of the independent Ukrainian state, its integration into the global and European political, economic and social environment, implementation of the EU-Ukraine Association Agreement, inter alia, in terms of updating civil and family legislation, make it necessary to form theoretical and legal basis for many family law institutions (Kuznetsova, 2021). Therefore, the study of differences between approaches to the legal regulation of family relations in the Republic of Latvia and Ukraine should take its own place among modern comparative family law researches. It is reasonably emphasized that the comparative family law intends not only to detect similar and different regulations but also establish better practices for implementing the same, make offers to improve legislation, harmonize and standardize family rules (Mendzhul, 2021). Therefore, to tap the potential of the legal regulation of family relations in Ukraine, it is expedient to study practices of other countries, one of which is the Republic of Latvia, through the prism of comparative and analytical, because Ukrainian family legislation can properly develop in the modern environment only if we understand European and global trends in the legal regulation of family relations (Novokhatska, 2006). 

Literature Review

According to literary sources, a special place in the "Family Law" nomenclature is taken by comparative family law works like theses for Candidate Degrees in Law Sciences (Cherneha, 2020). They include the scientific heritage of Ya. Novokhatska "Legal Regulation of Property Relations between Spouses (Comparative Legal Aspect)" (Novokhatska, 2006), and comparative family law studies: "Marital Agreement: Comparative Analysis of Legislation Pertaining to Different Law Systems" (Oliinyk, 2009); "Division of Spouses' Property according to Legislation of Ukraine and European Union" (Melnychenko, 2015); "Personal Non-Property Rights of a Child in Adoption under the Legislation of Ukraine and Certain Foreign Countries" (Melnyk, 2016); "Institute of Separate Living of Spouses in the Family Law: Comparative Legal Aspect" (Bilyk, 2017); "Harmonization of the Legislation of Ukraine to the Legislation of Member States of the European Union Relating to Matrimonial Regime Community Property" (Prostybozhenko, 2017); "Legal Grounds for Building Family as Shown in Legislation of Ukraine and EU Member States: Comparative Legal Review" (Revutska, 2018). There are also scientific articles covering models of the legal regulation of spousal separate residence regime in the countries of the European Union and Ukraine (Verba-Sydor, Vorobel, Podorozhna, Dutko & Grabar, 2020); some fundamental principles of the legal regulation of marital agreements in foreign systems of justice (Radchenko, 2017a); transformation of the "marriage" category concept in legislation of some states (Radchenko, 2017b); features of the legal regulation of family relations by codified legal acts in Ukraine and Western and Central European states (Vatras, & Kostyashkin, 2021). However, none of existing modern family law studies (publications) presents a comprehensive comparative and analytical review of the legal regulation of family relations in Ukraine and the Republic of Latvia.  

Methodology

When addressing the legal regulation of family relations in Ukraine and the Republic of Latvia for comparative and analytical purposes, the following methods were directly employed: analysis, analogy, deduction, induction, synthesis etc. The historical and legal method has allowed stating that Ukrainian legislators excluded the institution of engagement in 2006. The comparative and legal method which prevails in this comprehensive scientific research has contributed to finding a range of differences in the legal regulation of family relations in Ukraine and the Republic of Latvia. First, this study shows different approaches used by Ukrainian and Latvian legislators when it comes to the rights of persons under marriage age; factors that prevent (absence of factors that prevent) entering into marriage; the differentiation between and among grounds and procedures for recognising a marriage invalid; the recognition (non-recognition) of a marriage invalid after its termination; the marriage dissolution through judicial and extrajudicial procedures (by a civil registration office in Ukraine, and by a notary in the Republic of Latvia); the content of a marital agreement; disputing paternity by the person registered as the child's father; disputing paternity after the death of the person registered as the child's father; disputing maternity, as well as rights of the child's mother to dispute paternity of her husband; parents' consent to adoption of their child; the child's consent to adoption; the right to conceal the fact of adoption from an adopted child; the capability (incapability) of an adopter to change the data on the adopted child's date and place of birth. Second, the present research has revealed that, unlike Ukrainian legislative solutions, the Latvian family legislation do not cover the reinstatement of marriage if the person declared missing or presumed dead appears; the "living apart" regime; certain reasons for the marriage dissolution that can be witnessed in practice (for instance: if one of spouses dies before the court decision on their marriage dissolution enters into force, the marriage is considered terminated for the reason of their death; if one of spouses dies on the date when the court decision on their marriage dissolution enters into force, the marriage is considered terminated for the reason of its dissolution); the recognition of the marriage dissolution null and void etc. In their turn, Ukrainian legislators has not established yet some provisions applicable by the Latvian family law, for instance: first, a marriage shall not be considered concluded unless it was registered by a civil registration officer; second, appointing co-guardians. The legal modelling method has allowed articulating specific offers to improve effective Ukrainian family legislation.

The legal basis for the study is the Family Code of Ukraine, the Civil Law of the Republic of Latvia, the Law of Ukraine "On Amendments to Family and Civil Codes of Ukraine".

Results and Discussion

Ukraine and the Republic of Latvia have different by name instruments to govern family relations: Ukraine applies the Family Code of Ukraine adopted on 10 January 2002 (Law No. 2947-III, 2002), and the Republic of Latvia uses the Civil Law of the Republic of Latvia adopted on 28 January 1937 and amended on 14 January 1992 (Civil Law of the Republic of Latvia, 1937).

Unlike the Ukrainian legislation, the Latvian ones still contain the institution of engagement. In Ukraine, such an institution was cancelled by the Law of Ukraine (Law No. 524-V, 2006) "Amendments to Civil and Family Code of Ukraine" dated 22 December 2006. Before the cancellation, Part 1, Article 31 of the Family Code of Ukraine defined engaged persons as the persons who applied for their marriage registration. Also, Ukrainian legislators established that engagement does not mean an obligation to enter into marriage. By the way, the same rule is set forth in Part 1, Article 26 of the Civil Law of the Republic of Latvia. At present, the Family Code of Ukraine does not contain the term "engaged persons", since it was substituted with "bride/groom" (Clause 2, Part 1, Article 28 the Family Code of Ukraine). The Latvian law does not define the term "engaged persons". However, it contains the meaning of the term "engagement" which is mutual promises to be united in marriage (Part 1, Article 26 of the Civil Law of the Republic of Latvia). Notwithstanding that the institution of engagement was cancelled in Ukraine, the Family Code of Ukraine imposes certain obligations on a bride/groom in case of their refusal to get married (Parts 3, 4 Article 31). However, as literary sources rightly point out, it means the obligations imposed on a bride/groom in case of their refusal to register their marriage, rather than in case of their refusal to get married. Because there is no doubt that relations can be broken only if a person was a part of them (Cherneha, 2017).

Approaches applied by Ukrainian and Latvian legislators to the potential use of the right to marry by persons under marriage age are quite different. Part 2, Article 23 of the Family Code of Ukraine establishes that the right to marry may be granted by court to a person who turned 16, upon their request, provided that the court finds it consistent with their interests.  In contrast to the above, Article 33 of the Civil Law of the Republic of Latvia stipulates exceptional cases when the person who has turned 16 may get married with the permission from their father/mother or guardian provided that the marriage is concluded with a person of full age. If their parents or guardians refuse to give such a permission without a good reason, it may be given by the Latvian court extending its jurisdiction over the place of residence of parents or appointed guardians.

Both Ukrainian and Latvian legislators prohibit an adopter to enter into marriage with the person adopted by them. However, the Family Code of Ukraine contains the following exception to the rule: the marriage between an adopter and their adopted child may be registered if the adoption is cancelled (Clause 2, Part 5, Article 26). Unlike the Family Code of Ukraine, the Civil Law of the Republic of Latvia does not say that a court may allow the marriage between an adopter's biological and adopted children as well as between children adopted by an adopter (Part 4, Article 26 of the Family Code of Ukraine).

Approaches applied by legislators to the recognition (non-recognition) of a marriage invalid after its termination are also different in Ukraine and Latvia. According to Part 1, Article 43 of the Family Code of Ukraine, neither marriage dissolution, nor death of a wife/husband prevents the marriage from being recognised invalid. Moreover, if a marriage is dissolved by the court decision, a claim for recognizing it invalid may be filed only after the court decision on the marriage dissolution has been cancelled (Part 2, Article 43 of the Family Code of Ukraine). In contrast to the above, Part 2, Article 65 of the Civil Law of the Republic of Latvia says that if spouses died, the claim for recognizing their marriage invalid may not be filed.

Unlike the Civil Law of the Republic of Latvia, the Family Code of Ukraine distinguishes 3 statutory concepts for marriage invalidity: first, the marriage is invalid if (Article 39); second, the marriage is recognized invalid by court if (Article 40); third, the marriage may be recognized invalid by court if (Article 41).

Unlike Latvian legislators, Ukrainian ones refer the marriage registered with the person who concealed their grave disease or the disease which may be dangerous for their spouse and/or their future generations to the grounds for recognizing the marriage invalid (Clause 3, Part 1, Article 41 of the Family Code of Ukraine). Latvian legislators do not set the following exception to the rule: a marriage may not be recognized invalid if, when the case is being heard by court, there are no more reasons to believe that the person did not give their consent to marry or did not want to create a family (Part 3, Article 40 of the Family Code of Ukraine).

The following rule might be interesting for the Ukrainian legal environment: a marriage is considered invalid if it was not registered by a civil registration officer or a priest (Part 1, Article 60 of the Civil Law of the Republic of Latvia). The Ukrainian instruments governing family relations do not employ an equivalent approach in spite of its potential. It is expedient to update the abovementioned provision, since at present a religious marriage is not considered as the grounds causing marital relations in Ukraine even though recent scientific family law works state that in many countries a religious marriage has the same legitimate power as the marriage registered with the relevant state authorities (Safonchyk, Hlyniana, Melnyk, & Pliushko, 2019). It means that a marriage in Ukraine may not be registered by a priest. Therefore, Article 48 of the abovementioned codified act should be supplemented with Part 2 to read as follows: "A marriage shall be considered not concluded unless it was registered by a civil registration officer". Because according to Part 1, Article 48 of the Family Code of Ukraine, only the marriage registered without a bride and/or a groom shall be considered not concluded.

Approaches applied by Ukrainian legislators to the marriage termination for the reason of its dissolution also differ from those used in Latvia. The Family Code of Ukraine says that a marriage may be terminated for the reason of its dissolution by both a civil registration office (Articles 106-107), and a court decision (Articles 109-110). According to the Family Code of Ukraine, a marriage shall be terminated for the reason of its dissolution: а) upon spouses' joint request (Article 106); b) upon spouse's request (Article 107). The Family Code of Ukraine stipulates that a marriage shall be terminated for the reason of its dissolution: а) by court decision upon spouses' joint request (Article 109); b) by virtue of the court decision in the case brought by one of spouses (Article 110). In contrast to the above, Part 1, Article 69 of the Civil Law of the Republic of Latvia set forth that a marriage may be dissolved only by court or a notary. It is obvious that grounds and procedures for dissolving a marriage by a civil registration office in Ukraine and by a notary in the Republic of Latvia are also different. The next difference is the absence of the following rule in the Family Code of Ukraine: a marriage may be dissolved if it has broken down (Part 2, Article 69 of the Civil Law of the Republic of Latvia), i.e. the spouses have been living separately for more than 3 years (Article 72 of the Civil Law of the Republic of Latvia). 

Unlike the Family Code of Ukraine, the Civil Law of the of Republic of Latvia does not cover:

- some grounds for marriage termination which can be witnessed in practice including:

a) if one of spouses dies before the court decision on their marriage dissolution enters into force, the marriage is considered terminated for the reason of their death (Part 3, Article 104 of the Family Code of Ukraine);

b) if one of spouses dies on the date when the court decision on their marriage dissolution enters into force, the marriage is considered terminated for the reason of its dissolution (Part 4, Article 104 of the Family Code of Ukraine);

- the recognition of the marriage dissolution null and void, i.e. upon request of a person concerned, the marriage dissolution executed by a civil registration office upon request of the spouses who have no children may be recognised by court null and void if it reveals that a wife and a husband kept living as a family and did not seek to terminate marital relations (Part 1, Article 108 of the Family Code of Ukraine);

- the reinstatement of a marriage if: а) the person presumed dead appears (Part 1, Article 118 of the Family Code of Ukraine); b) the person declared missing appears (Part 2, Article 118 of the Family Code of Ukraine);

- the establishment of the "living apart" regime, as well as legal consequences of establishing such a regime which (Articles 119-120 of the Family Code of Ukraine), according to experts, was introduced by legislators "to preserve marriages by giving spouses some more time (the duration of which is not prescribed by law) to think over their decision to divorce, since a husband and a wife overwhelmed by emotions are not always fair-minded when they decide to divorce, and later they regret of doing so" (Bilyk, 2017). The  legal  regime  of  separation  "is  a  complex institute  in  which  establishment  entails  several legal consequences for both the spouses and other members  of  the  family  and  concerns  both  the property and personal non-property rights of the parties" (Verba-Sydor, Vorobel, Podorozhna, Dutko, & Grabar, 2020).

It is difficult to object that statutory instruments cannot fully cover all the variety of family relations with spouses' individual interests considered. Such being the case, a marital agreement will help as it serves as a legal instrument to govern relations between spouses (Oliinyk, 2009). He is "primarily intended to strengthen the family institution, allowing more fully to take into account the interests of each spouse, reduce the number of disputes and conflicts between them, and in the case of divorce and division of property – to solve this more civilized way" (Safonchyk, Sirko, & Andronova, 2019).  In both Ukrainian and Latvian legislation, a marital agreement governs only property relations. However, Ukrainian legislators set requirements to the content of a marital agreement which are absent in the Civil Law of the Republic of Latvia. According to the Family Code of Ukraine: а) a marital agreement governs neither personal relations between spouses nor personal relations between spouses and their children (Part 3, Article 93); b) such an agreement may neither reduce the scope of rights assigned to a child by the Family Code of Ukraine, nor put one of spouses in an extremely disadvantaged financial position (Part 4, Article 93); c) neither immovable nor other property the title to which is subject to the state registration may be conveyed to one of spouses under a marital agreement (Part 5, Article 93).

Ukrainian and Latvian legislators have original approaches to disputing paternity by the person registered as the child's father. According to Part 1, Article 136 of the Family Code of Ukraine, the person entered into the register as a child's father may dispute his paternity by claiming the entry of his paternity to be removed from the child's birth record. Paternity may be disputed only after a child has been born and before they have turned 18 (Part 3, Article 136 of the Family Code of Ukraine). It is also worth mentioning that, pursuant to Part 6, Article 136 of the Family Code of Ukraine, the action limitation period does not apply to the claim filed by a man to remove the entry of his paternity from the child's birth record. At the same time, the Civil Law of the Republic of Latvia stipulates that presumed paternity may be disputed by the husband of the child's mother within 2 years from the date when he became aware of the fact that the child had not been conceived by him (Part 1, Article 136).

Moreover, according to Part 3, Article 149 of the Civil Law of the Republic of Latvia, a child may dispute presumed paternity within 2 years from the date when they came of age. The person who thinks that he is a biological father of the child, excluding the cases when the child was conceived in breach of moral principles and due to the sexual offence, may dispute presumed paternity within 2 years upon the child's birth if: а) the child's mother died when delivering; b) the child`s mother and the husband of the child's mother have been living apart for more than 306 days before the child`s birth (Part 5, Article 149 of the Civil Law of the Republic of Latvia). Ukrainian legislators also set forth some exceptions. According to Part 4, Article 136 of the Family Code of Ukraine, paternity may not be disputed in case of the child`s death. Pursuant to Ukrainian law, paternity may not be disputed by the person entered into the register as the child's father if he knew that he is not the child's father (when being registered as the child`s father) and gave his consent to the use of assisted reproductive technologies as referred to in Part 1, Article of the Family Code of Ukraine.

Ukrainian and Latvian legislation are also rather original when it comes to disputing paternity after the person entered into the register as the child's father died. Part 1, Article 137 of the Family Code of Ukraine stipulates that if the person entered into the register as the child's father had died before the child was born, his paternity may be disputed by his successors provided that he, when alive, submitted the non-paternity statement to the notary. If the person entered into the register as the child's father died after he had brought before the court the claim for the entry of his paternity to be removed from the child's birth record, this claim may be supported in court by his successors (Part 2, Article 137 of the same legislative instrument). Pursuant to Part 3, Article 137 of the Family Code of Ukraine, if the person who did not know, for good reasons, that he was entered into the register as the child's father, died, his paternity may be disputed by his successors: his wife, parents and children. Here it should be mentioned that the action limitation period does not apply to the claim filed by a man to remove the entry of his paternity from the child's birth record (Part 4, Article 137 of the Family Code of Ukraine). In contrast to the above, Part 4, Article 149 of the Civil Law of the Republic of Latvia stipulates that if a man dies being unaware of the child's birth his parents may dispute his presumed paternity within two years from the date when they became aware of the fact that the child was not conceived by their son.

Legislation of the countries in question also have a number of differences when it comes to disputing maternity, as well as the right of the child`s mother to dispute her husband's paternity. According to Part 1, Article 139 of the Family Code of Ukraine, a woman entered into the register as the child's mother may dispute her maternity. It is not directly provided for by the Civil Law of the Republic of Latvia. While the Civil Law of the Republic of Latvia just says that a mother also may dispute her presumed maternity (Part 2, Article 149), the Ukrainian legislation answers in detail how the rights of the child's mother to dispute her husband's paternity may be exercised. According to Part 1, Article 138 of the Family Code of Ukraine, a woman who gave birth to a child when married may dispute her husband's paternity by claiming the entry of his paternity to be removed from the child's birth record. The mother's claim for the removal of the entry of her husband's paternity from her child's birth record may be satisfied only if the other person submits the paternity statement (Part 2, Article 138 of the same legislative instrument). It should also be mentioned here that pursuant to Part 3, Article 138 of the main instrument governing family relations in Ukraine, the action limitation period of 1 year applies to the claim filed by the mother to amend her child's birth record. It starts from the date when the child's birth record was entered into the register.

In Ukraine, as rightly stated by law scholars, the effective protection of the rights of children when being adopted is one of the promising areas of research (Melnyk, 2016). The legislation of both countries varies when it comes to the parents' consent to adoption of their child. According to Part 3, Article 217 of the Family Code of Ukraine, parents may give their consent to adoption of their child only after the child turns two months. In contrast to the above, Part 2, Article 169 of the Civil Law of the Republic of Latvia establishes that the mother may not give her consent to adoption of her child earlier than 6 months after the delivery. Moreover, the Latvian legislation does not contain the following rule: if a child's mother/father is underage, in addition to their consent to adoption, the consent of their parents is required (Part 4, Article 217 of the Family Code of Ukraine).

Giving by a child their consent to adoption is also viewed differently in analysed countries. According to Part 2, Article 169 of the Civil Law of the Republic of Latvia, an adopted person gives their consent to adoption provided that they have turned 12. In contrast to the above, Ukrainian legislators do not specify the age of the child who shall give their consent to adoption. The consent to adoption is required from a child provided that their age and level of maturity let them express it (Clause 1, Part 1, Article 218 of the Family Code of Ukraine). Moreover, it is important to point out that, according to Clause 2, Part 1, Article 218 of the same codified act, the child shall give their consent to adoption in form which corresponds to their age and physical condition. At the same time, the Family Code of Ukraine, unlike Latvian legislation, sets forth two exceptions to the rule when a child's consent to adoption is not required: а) if a child's age or physical condition does not let them understand that they are being adopted (Part 3, Article 218); b) if a child lives in the adopters' family and thinks that adopters are their parents (Part 4, Article 218).

Different approaches in terms of the right to conceal the fact of adoption from an adopted child are embodied in the Ukrainian and Latvian legislation. Part 2, Article 171 of the Civil Law of the Republic of Latvia stipulates the following rule: the information on adoption shall not be disclosed without an adopter's consent until the child comes of age. In contrast to the above, Part 1, Article 227 of the main instrument governing family relations in Ukraine says that an adopter shall be entitled to conceal the fact of adoption from their adopted child and require from persons who became aware of this adoption not to disclose this information whether before or after the child comes of age. In addition, when comparing the Ukrainian legal regulation with the Latvian one, we should conclude that only the Ukrainian law establishes that if a child under 7 is adopted, officials, when finding out whether the child wants to be adopted, shall make every effort to conceal the fact of adoption from that child (Part 3, Article 227 of the Family Code of Ukraine).

For comparative and analytical purposes, it is also interesting to find out whether an adopter is capable (incapable) to change data on the child's date and place of birth. The Civil Law of the Republic of Latvia prohibits to change the adopted child's date of birth (Part 3, Article 172), meanwhile Part 2, Article 230 of the Family Code of Ukraine contains an opposite provision: an adopted child's date of birth may be changed but not more than for 6 months. Moreover, Ukrainian legislators allow an adopter to change not only the child's date of birth but also data on their place of birth (Part 1, Article 230 of the Family Code of Ukraine).

It is interesting from the Ukrainian legal point of view to read the Latvian rule stipulating that not more than 3 guardians, i.e. co-guardians, may be appointed for very complicated guardianship (Article 316 of the Civil Law of the Republic of Latvia). It is expedient to amend the Family Code of Ukraine with the same provision.

Conclusions

The complex comparative and analytical research of the legal regulation of family relations in Ukraine and Latvia allowed showing a range of different approaches used by legislators when it comes to the rights of persons under marriage age; factors that prevent (absence of factors that prevent) entering into marriage; the differentiation between and among grounds and procedures for recognising a marriage invalid; the recognition (non-recognition) of a marriage invalid after its termination; the marriage dissolution through judicial and extrajudicial procedures (by a civil registration office in Ukraine, and by a notary in the Republic of Latvia); the content of a marital agreement; disputing paternity by the person registered as the child's father; disputing paternity after the death of the person registered as the child's father; disputing maternity, as well as rights of the child's mother to dispute paternity of her husband; parents' consent to adoption of their child; the child's consent to adoption; the right to conceal the fact of adoption from an adopted child; the capability (incapability) of an adopter to change the data on the adopted child's date and place of birth.

In addition, the present research has revealed that, unlike Ukrainian legislative solutions, the Latvian family legislation  do not cover the reinstatement of marriage if the person declared missing or presumed dead appears; the "living apart" regime; certain reasons for marriage dissolution that can be witnessed in practice (for instance: if one of spouses dies before the court decision on their marriage dissolution enters into force, the marriage is considered terminated for the reason of their death; if one of spouses dies on the date when the court decision on their marriage dissolution enters into force, the marriage is considered terminated for the reason of its dissolution); the recognition of the marriage dissolution null and void etc. The study suggests how to develop family legislation of Ukraine based on the Latvian best practices. It is expedient: first, to supplement the Family Code of Ukraine with the provision saying that a marriage shall be considered not concluded unless it was registered by a civil registration officer; second, to legislatively establish the practice of appointing co-guardians in Ukraine.

However, the huge number of legal instruments to govern family relations in analysed countries does not allow showing all the comparative and analytical aspects in one scientific paper. Therefore, the following complex studies should focus on comparative and analytical aspects of the legal regulation of personal non-property and property relations between spouses, parents and children as well as on existing alternative forms of placing children in Ukraine and the Republic of Latvia. Because further development and application of the Ukrainian family legislation "should be ensured in view of the European regulations and standards governing family relations" (Prostybozhenko, 2017).