ON BEHALF OF THE REPUBLIC OF AZERBAIJAN
DECISION
OF THE PLENUM OF CONSTITUTIONAL COURT
OF THE REPUBLIC OF AZERBAIJAN
On interpretation of Article 15 of the Family Code of the Republic of
Azerbaijan
16 October 2015
Baku city
The
Plenum of the Constitutional Court of the Republic of Azerbaijan composed of
Farhad Abdullayev (Chairman), Sona Salmanova, Sudaba Hasanova (Reporter-Judge),
Rovshan Ismaylov, Raphael Gvaladze, Makhir Muradov, Isa Najafov and Kamran
Shafiyev;
attended
by the Court Clerk Faraid Aliev,
representatives
of the interested parties – Ilaha Abbasova, Judge of Yasamal district court of
the Baku city, Magomed Bazıgov, Senior Adviser of the Department of Social Legislation
of the Apparat of Milli Majlis of the Republic of Azerbaijan,
expert
– Makhabbat Damirchiyeva, Department of Civil Law of the Baku State University,
Doctor in Law, Professor,
specialists
– Asad Mirzaliyev, Judge of the Supreme Court of the Republic of Azerbaijan, Ikram
Shirinov, Judge of the Court of Appeal of Baku city,
in accordance with Article 130.6 of the
Constitution of the Republic of Azerbaijan examined in open judicial session
via special constitutional proceedings the case concerning inquiry of
Yasamal District Court of the city of Baku on interpretation of provision “within
one year after the child's birth” of Article 15 of the Family Code of the
Republic of Azerbaijan.
Having
heard the report of the Judge S. Gasanova, the reports of the legal
representatives of the subjects interested in special constitutional
proceedings and specialists, conclusions of expert, examined the materials of
the case the Plenum of Constitutional Court of
the Republic of Azerbaijan
DETERMINED AS FOLLOWS:
Yasamal District Court of Baku city of, having
applied to the Constitutional Court of
the Republic of Azerbaijan (hereinafter referred to as
the Constitutional Court) asks for interpretation of provision “within one
year after the child's birth” of Article 15 of the Family Code of the Republic
of Azerbaijan (hereinafter referred to as the Family Code).
It
is specified in the address that the claimant O. Aliyev on December 29, 2014
lodged a claim against G. Guseynova with the requirement of dissolution of
marriage, however because the defendant was pregnant, a marriage was not
dissolved. After that on February 28, 2015 at the defendant the dead child was
born, the claimant lodged the claim for dissolution of marriage again. During
judicial examination the defendant did not agree with dissolution of marriage,
and, having referred to Article 15 of Family Code, declared absence at the
husband of the right to demand a dissolution of marriage.
According to the requirement of Article 15 of
the Family Code called “restriction of the right of the husband to demand a
dissolution of marriage” during pregnancy of the wife or within one year after
the child's birth the husband has no right without the consent of the wife to lodge
the claim for dissolution of marriage.
However, taking into consideration of lack of
exact establishment of whether this restriction cover the cases of the birth of
the dead child or his/her death before achievement of one year and existence in
judicial practice of various approaches connected with application of article, applicant
came to a conclusion about necessity of interpretation of the norms specified
in Article 15 of Family Code for clarify a question of whether the husband
without the consent of the wife had the right to lodge a claim for dissolution
of marriage within one year after the birth of the dead child, or in case of
his/her death before achievement of one year.
The
Plenum of the Constitutional Court in connection with the inquiry
considers necessary to note the following.
In
Article 17 of the Constitution of the Republic of Azerbaijan (hereinafter
referred to as the Constitution) it is specified that the family as a kernel of
society is under special protection of the state.
The
institution of the family as one of the main institutes of civil society,
historically was considered as the keeper of human values, culture and
historical heritage of generations, a basis of stability and growth. The family
was estimated as the union making a basis of any civilized society, representing
the main, sublime and pure feelings, noble intentions of humanity.
On
an equal basis with the fact that on the biological, social and household
functions, the family is a cell of society, it also big wealth, ornament,
meaning of life of each normal person. The family is the union towering over
ethical and moral values.
As
result of significance attached by the state to the institution of the family,
conditions of the marriage making a basis of creation of family are defined by
the Constitution.
According
to Article 34 of Constitution called “Right to marriage” everyone has the right
to marry upon attaining the age prescribed by law. Marriage consists on the
basis of voluntary consent, and nobody can be forced to marriage. Family and
marriage are under protection of the state. Maternity, paternity and childhood
are protected by law. The state renders support to families with multiple
children. Rights of wife and husband are equal. Care and upbringing of children
constitute both right and responsibility of parents.
The family legislation, copying the main idea
from the Constitution, established the principles of building and strengthening
of family relations, their terminations, the rights and duties of participants
of the family relations, obligations of public authorities in this sphere and
also the norms regulating an order of the state civil registration.
In Article 1.3 of Family Code it is established
that the family legislation proceeds from need of strengthening of family,
creation of the family relations on feelings of mutual love and respect,
inadmissibility of intervention someone in cases of family, mutual assistance
and responsibility to family of all her members, ensuring free implementation
by members of the family of the rights, possibilities of legal protection of
these rights.
According
to the family legislation, marriage is the voluntary union of the man and woman
registered in relevant organ of the executive authority for the purpose of
creation of family (Article 2.3 of Family Code).
Any
forms of restriction of the rights of citizens in case of marriage are
forbidden and in the family relations on signs of social, racial, national,
language or religious affiliation. The rights of citizens in family can be
limited only based on the law for the purpose of protection of morality,
health, the rights and legitimate interests of other family members and other
citizens (Articles 2.4 and 2.5 of Family Code).
Citizens
carry out the family rights and also protection of the specified rights independently
if the present Code did not provide for other order. At implementation of the
rights and fulfillment of the duties the family member should not violate the
rights, freedoms and legitimate interests of other family members and other
citizens (Article 6 of Family Code).
According to the legal position created by the
Plenum of the Constitutional Court in the Decision of November 2, 2010 “On
interpretation of Article 307.2.4 of the Civil Procedure Code of the Republic
of Azerbaijan” on the basis of the principle of voluntariness and free will of
the marriage union of the man and the woman, each man and each woman according
to own conclusion voluntarily, without influence of strangers have rights to
choose to themselves the husband and the wife. The
basic condition of a marriage is the mutual free-will consent of the man and
the woman.
Analyzing the above-stated norms of
Constitution and family legislation, the Plenum of the Constitutional Court
considers that voluntariness of marriage, freedom of will of the persons getting
married, need of strengthening of family, ensuring free implementation of the
rights of spouses and a possibility of protection for court of these rights,
equality of spouses, the solution of intra family questions on the basis of
mutual consent and other the principles are cover all stages of marriage
(marriage, being married and dissolution of marriage).
The
bases and order of dissolution of marriage are regulated by provisions of
Chapter 4 of the Family Code, and issues of registration of dissolution of
marriage in Chapter 25 of this Code.
In
the theory of family law, dissolution of marriage is understood as the
termination of the relations of the spouses created from the marriage concluded
in the order provided by the law in connection with emergence of certain legal
facts.
The
family legislation establishes two orders of dissolution of marriage – in a
judicial proceeding and in appropriate authority of executive power
(administratively). According to Article 16 of Family Code dissolution of
marriage is carried out by appropriate authority of executive power, and in the
cases provided by Articles 19-21 of the present Code by court.
In
these articles the legislator established two main conditions of dissolution of
marriage by judicial procedure: when spouses have common minor children; one of
the parties does not agree with dissolution of marriage.
By
establishing the order of dissolution of marriage, the Family Code, acts in
terms of voluntariness of marriage, equality of spouses and also freedom of dissolution
of marriage, the principle of ensuring free implementation of the rights of
spouses and also in terms of protection of the rights of children.
As
it was already noted on the basis, Article 15 of Family Code, during pregnancy
of the wife or within one year after the child's birth the husband has no right
without the consent of the wife to lodge the claim for dissolution of marriage.
The Plenum of Constitutional Court considers
that this limiting indication of law, being the reason of disagreements in
judicial practice, serving for family integrity, protection of the rights of
mother and child, is not only acceptable for women on a certain interval of
time, that is during pregnancy and after the child's birth, but also appreciation
of motherhood.
It
also follows from tasks of Family Code. So, according to Article 3.0.4 of this
Code, the comprehensive protection of the interests of mothers and children's
interests and provision of a happy life of every child is established as one of
tasks of the present Code.
According to Article 85.1.1 of the Family Code,
a former wife in the period of pregnancy and during 3 years from the birth of
common children, has the right after dissolution of marriage via judicial procedure
to demand from the former husband, who have a necessary means, the payments of
alimony.
From
this point of view, restriction for a certain period of the right of the
husband to demand dissolution of marriage, cannot be perceived as violation of
equality of spouses. So, this right is limited only in the known interval of
time that completely conforms to requirements of Article 2.5 of Family Code. Here
the purpose consists in creation of softer conditions concerning the woman and
the child.
Restriction
for a certain term for the rights of the husband to demand dissolution of
marriage without the consent of the wife during her pregnancy and after the
child's birth is provided in the matrimonial legislation of a number of the
states.
So,
similar approach is established also in the legislation of the Russian
Federation, Kazakhstan, Ukraine, Kyrgyzstan, Moldova, Republic of Belarus.
In the decision of the Plenum of the Supreme
Court of the Russian Federation of November 5, 1998 “On application by courts of
the legislation for dissolution of marriage”, giving interpretation to Article
17 of the Family Code of the Russian Federation regulating a similar issue, it
is specified that the lack of the right of the husband without the consent of
the wife to initiate proceedings on dissolution of marriage during pregnancy of
the wife or within one year after the child's birth, extends also to cases when
the child died before achievement of one year age.
And
the legislation of Moldova preconditioned the introduction of year restriction
on presentation by the husband of the claim for dissolution of marriage, by the
fact that the child is alive within one year after the birth.
As for various approaches connected with
application of Article 15 of Family Code, the Plenum of Constitutional Court
considers that in point of fact of law the imposition of the restriction on
presentation by the husband of the claim for dissolution of marriage without
the consent of the wife during pregnancy or within one year after the child's
birth, is not stipulated only by the birth fact. Expression
“after the birth” norms means the expiration of one year after the birth fact.
The child's birth is already considered as the legal fact, the birth of the
dead child has no value for elimination of the term established by the law.
In connection with that whether the requirement
of Article 15 of Family Code is extends on a case of death of the child before
achievement of one year, the Plenum of the Constitutional Court notes that this
provision of the law, having imperative character, unambiguously established
that the husband has no right without the consent of the wife to make the claim
for dissolution of marriage within one year after the child's birth. The restriction set by the law for a period of one year does not
coordinate with the fact of death of the child in several months, and his death
does not cancel a year. In this context, the year restriction provided in
Article 15 of Family Code includes also cases of the birth of the dead child or
his/her death before achievement of one year.
In point of fact of specified article, the
right of the husband to lodge the claim for dissolution of marriage without the
consent of the wife, and in case of the birth of the dead child or the death of
the child who did not reach one year, arises only upon termination of a year
since the birth of the child.
According to the requirement of the law if the
husband without the consent of the wife during pregnancy of the wife lodge the
claim for dissolution of marriage, his claim should not be accepted by court,
and in case of establishment of pregnancy after acceptance of the claim in proceeding,
the proceeding has to be stopped according to requirements of the civil-procedural
legislation.
On the basis of the above the Plenum of the
Constitutional Court came to such conclusion that provision “during pregnancy
of the wife or within one year after the child's birth the husband has no right
without the consent of the wife to lodge the claim for dissolution of marriage”
of Article 15 of Family Code includes also cases of the birth of the dead child
or his/her death within one year after the birth.
Being
guided by Part VI of Article 130 of the Constitution of the Republic of
Azerbaijan and Articles 60, 62, 63, 65-67 and 69 of the Law of the Republic of
Azerbaijan “On Constitutional Court”, the Plenum of the Constitutional Court of
the Republic of Azerbaijan
DECIDED:
1. Provision “during pregnancy of the wife or
within one year after the child's birth the husband has no right without the
consent of the wife to lodge the claim for dissolution of marriage” of Article
15 of Family Code includes also cases of the birth of the dead child or his/her
death within one year after the birth.
2.
The decision shall come into force from the date of its publication.
3.
The decision shall be published in ‘Azerbaijan’, ‘Respublika’, ‘Xalq Qazeti’
and ‘Bakinskiy Rabochiy’ newspapers and ‘Bulletin of the Constitutional Court
of the Republic of Azerbaijan’.
4.
The decision is final, and cannot be cancelled, changed or officially
interpreted by any body or official.
