Stripped of its religious sanctimony, what is a marriage? What should be a civil legal definition? Should there even be a definition? What are its secular ‘rights and obligations’? Big questions that needed to be answered as nearly all relations were remade under the early Soviets.

‘Family and Marriage Rights in the Soviet Union’ by J. Brandenburgsky from International Press Correspondence. Vol. 5 No. 19. March 12, 1925.

(The Bill upon Family and Marriage Rights.)

About a year ago the Session of the All-Russian Central Executive Committee recognised the necessity for a revision of the Legal Code of Civil Rights. This Code was published in 1918 and during the course of the ensuing years it was subjected to but slight alterations and extensions.

It is the intention of the Commissariat of Justice to present the coming session of the All-Russian Central Executive with a new draft code.

The central point is the marriage question. In 1918 when we laid down our principle of the so-called civil marriage, we had to struggle against the religious marriage and propagate the so-called civil marriage in contradiction to this. We were therefore compelled to emphasise strongly in one of the main articles of the Code that “only the civil marriage (soviet marriage) registered in the Civil Registry brings with it the rights and duties of married people”.

This was true in so far as the “soviet marriage”, as it was legally expressed at the time, was opposed to the religious marriage. But it was clear that such a law must quickly become obsolete, that is as far as it declared that only the registered civil marriage brought with it rights and duties.

This naturally brings forward two questions:

First, is the registration of a marriage absolutely necessary if the marriage is to be valid?

And the second question. What constitutes in any case, the “validity of marriage”?

The idea of the “validity of marriage” is indissolubly bound up with the idea of the “legitimacy of marriage”, and these two ideas stand in the closest connection with the relation of the classes and the capitalist nature of present-day states, where the bourgeoisie carefully isolates itself from “people of low birth”. Only “legitimate” children have access to the families of the well-to-do, that is to say, children who are the offspring of an alliance made holy either by the church or society, i.e. the possessing class. The Russian landowner could have sex relations with women among his serfs, the officer could have a liaison with the milliner, but these alliances were not legitimate and the children following from them were branded as “illegitimate”, they were not permitted to belong to the family of the “respectable” father.

Now, after the overthrow of the capitalist order and the dominance of the Church, and after the abolition of the class differences, the material difference between the cohabitation of married and of unmarried couples disappears completely. The illegitimate cohabitation is regarded by the law not only as a fact, but as a valid state and in consequence there can no longer be any talk of the legal invalidity of marriage when the latter actually exists. It is perfectly clear that marriage is valid whether it is registered or not.

If a registration is necessary, this is in no way for the purpose of making the marriage valid (this is done by the fact and not by the formality) but for the purpose of defending the personal and material rights and interests of the married couple and the children. From the legal standpoint there is no difference between registered and unregistered marriage, and no such difference can exist in the Soviet Union. All the rights. and duties which the registered marriage brings with it must also be brought with the actual marriage relations, whether these latter are registered or not.

In 1918, the introduction of the registration of marriage was necessary as a counter-poise to the religious marriage. At the present time it is necessary to go still a step further and to recognise that the registration of marriage is actually nothing but a transitional stage to a higher form of marriage, free and without any form of registration.

Therefore, the draft which will be presented to the session of the All-Russian Central Executive Committee will in no way contend that registration in the usual way is necessary for the validity of marriage. That would be wrong. Marriage will in all cases be valid and its material and legal consequences will be in all cases the same. The draft rather says, even in its first article, that “the registration of marriage is for the purpose of rendering easier the defence of the personal and material rights and interests of the married couple and the children.”

This basic idea involves a number of conclusions. The new draft no longer speaks, like the old Code, of the conditions of marriage (with this the law cannot deal) but lays down the conditions necessary for the registration of marriage. This is by no means the same thing.

Persons who stand to one another in marriage but not in registered relations have the right at any time to define their relations legally by registration with a statement of the duration of the relations.

The right of alimony extends in the same way to unregistered married people, with the clause, however, that the unregistered party can only demand this right when the other party is not otherwise registered. That is, if a registered marriage is not only not liquidated, but is continued in the form of cohabitation, then a parallel relation, no matter whether this is of a more or less lasting character, cannot have the character of a marriage. This however does not affect the alimony for the children.

The old law is fundamentally altered by the fact that now both parties to the marriage have the same right to property acquired during the cohabitation. To the Soviet Government the division of the property of the individual parts of this unique “co-operative” appears as a remnant of the old inviolability of private property. For us, the normal and typical is the working class family where it is not possible to weigh on the scales the amount subscribed to the common good by each of the parties to the marriage. The results of the joint work of the parties to the marriage (the one outside the family and the other often inside) must represent the property of both parties; therefore the draft of the Commissariat of Justice lays down the joint character of all property acquired in the course of the marriage, no matter of what this may consist.

With regard to the relations between parents and children, the bill makes in this case far less fundamental alterations, for the basic lines of our conceptions in this connection have already been laid down with perfect clearness in the Code of 1918. These basic lines are: the rights of the children with regard to the parents are determined by their actual origin, and in consequence, there can be no question of illegitimate birth, and secondly, the rights of the parents are carried out exclusively in the interests of the children, and in consequence the law gives no rights to the parents with regard to the children for the benefit of the parents themselves, but only with regard to third persons and in the interests of the children. With regard to the children however, the parents have above all duties to perform they must take care of the children during, infancy they must educate them and equip them for some social activity, and when the parents fail to perform these duties, then the courts can deprive them of their so-called rights as parents and take the children from them.

The new draft code contains a more precise definition, the previous lack of which led in practice to extremely perceptible conflicts: the parents have the right to apply to the courts for the return of their children who, for some reason or another, are in the hands of other persons, but in giving judgment the courts are not formally bound by the rights of the parents, but must exclusively keep in mind the interests of the children.

A very important alteration is the fact that adoption is permitted. In this the compiler of the code sees an effective means, amongst others, of combatting the abandonment of children as waifs and strays. The institutions for the protection of infants and mothers and for the socio-legal protection of children have for a very long time followed the practice of adopting and educating children, whilst the widespread practice amongst the peasants of giving their children away to foster parents has never been abolished. In such circumstances, the prohibition of adoption contained in the Code of 1918 has lost all justification and the new draft permits of formal adoption in which the adopted children are in all ways placed on a level with the natural children of the adopting parents.

We wish by way of example to point to the backwardness which is characteristic of the treatment of the question of marriage and the family in contemporary bourgeois countries up to the present day.

The most interesting in this connection is the Republic of France where the Church is separated from the State and where marriage by the Church has no legal standing but requires the completion of the marriage through the organs of the civil power. But this external form in no way prevents the treatment of all questions relating to marriage from the point of view of the basic norm of the old Roman law, in the eyes of which the woman remains under guardianship all her life. For this reason the French marriage has nothing in common with our marriage registration.

Let us compare the first article of our code (see above) which defines with perfect clearness the rather narrow boundaries of the legal significance of the registration, with §149 of the French Civil Code: “No one can assume the title of wife or husband or demand the civil rights of marriage unless he or she can produce a document of the marriage recorded in the register.” That means that all the material legal relations arise, not as with us, from the actual fact of the marriage, but only from the act of its legal completion.

The French law further demands the consent of the parents in cases where the parties to the marriage are under twenty one, and should there be no parents, then the consent of other adult relatives and even of other branches of the family, or finally of the family council.

Further, the soviet law does not mention the question of the equal rights of both parties to the marriage with regard to their material or personal relations. This equality stands beyond all doubt.

§213 of the French Civil Code declares, on the other hand, that the husband must protect his wife and that she must repay this by her obedience, and that in consequence she is obliged to follow him everywhere wherever it should please him to go. Her property rights are limited even if she follows her own profession or if the two live with separate property; she has not the right to appear before a court without the consent of her husband and to sell her property, to part with it, to pledge it or to give it away! The husband manages, in virtue of the law, the whole property of the family and of the wife and can alone (“seul”) dispose of her whole personal property (with the exception of the unalienable immovable property) unless the woman or her relatives have taken care to regulate their mutual property relations by a special marriage contract.

And divorce? The grounds permitting this in France are extremely limited. They are: breaking of the marriage vows, further the famous “adultery”, serious illness or a judgment of the courts for a crime incompatible with the marriage. For divorce a complicated process is necessary with a preliminary period for proof and a separation of the two parties (“separation de corps”). In the Soviet Union divorce is obtainable at the wish of one of the parties to the marriage without further requirements.

In the other countries of Europe the laws upon marriage approximate to the French law which, like the French civil code, is the most logical.

In general one can say that marriage legislation in bourgeois countries binds the married parties most closely where religious sentiment is strongest, but the essence of this legislation is approximately the same and represents a variation of the French or, better still, the Roman conception of marriage. According to the general German law, the properly of the woman is handed over to the man for management as a consequence of the marriage, with the exception of the articles for her personal need and the property acquired by her own work. Business agreements of the woman without the agreement of her husband are invalid and even court decisions regarding matters which the woman has undertaken without the consent of the husband have no force for him.

In comparison with bourgeois family and marriage legislation that of the Soviet opens up a new world.

International Press Correspondence, widely known as”Inprecor” was published by the Executive Committee of the Communist International (ECCI) regularly in German and English, occasionally in many other languages, beginning in 1921 and lasting in English until 1938. Inprecor’s role was to supply translated articles to the English-speaking press of the International from the Comintern’s different sections, as well as news and statements from the ECCI. Many ‘Daily Worker’ and ‘Communist’ articles originated in Inprecor, and it also published articles by American comrades for use in other countries. It was published at least weekly, and often thrice weekly.

PDF of full issue: https://www.marxists.org/history/international/comintern/inprecor/1925/v05n19-mar-12-1925-inprecor.pdf