The Marriage Laws of Soviet Russia
Complete text of first code of laws of the Russian Socialist Federal Soviet Republic dealing with Civil Status and Domestic Relations, Marriage, the Family and Guardianship.
INTRODUCTION
This first Code of Laws of the Russian Soviet Republic relating to Civil Status and Domestic Relations was adopted by the All-Russian Central Executive Committee on September 16, 1918. It follows out the principles expressed in two decrees on marriage and divorce of December 18, 1917, and a decree of April 27, 1918, abolishing the right of inheritance.
The editor in chief of the Collegium of Laws, A. G. Hoichbarg, in preface to an edition of the Code published by the People's Commissariat of Justice at Moscow, writes:
"It is to be understood that in publishing its codes the government of the proletariat engaged in establishing Socialism in Russia does not aim to make them of long duration. It does not desire to establish 'eternal codes'. It would not emulate the bourgeoisie, who have always sought to strengthen their position with the help of such eternal codes. . . . The proletarian government constructs its laws so that each day of their existence should make their continuance less necessary. . . . For example, the Soviet Constitution, based upon the principle of the political supremacy and dictatorship of the proletariat, is so made that each day of its application, shattering the resistance and organization of the classes of the former oppressors and uniting the formerly oppressed, thus lessens the necessity for this form of constitution, for this forced political supremacy, and for compulsory political supremacy in general. . . . The proletarian power frankly acknowledges that its laws should not be lasting, that they are made to meet the needs of a period of transition, the duration of which it fervently desires to shorten. This period of transition is unavoidable; we may adopt measures to shorten its duration, but we cannot leap across it."
So in this code of laws relating to civil status and domestic relations there may be discerned three strains which mark them as the characteristic expression of the proletarian power in its struggle to bridge the transition from the old order to the new. There are, first, those aggressively revolutionary provisions aimed at the destruction of the old order; secondly, there are the temporary expedients which, while recognizing the stubborn survival of old conditions within the new order, operate to accelerate their disappearance; and, finally, there are here also truly socialistic forms, the constructive foundations of the new organization. In the first category, among the aggressively revolutionary features of this code, are the sharp blows struck against old oppressions, against ancient class privileges and barbaric taboos. Such are the clauses aimed against the domination of human relations by the temporal power of a corrupt clergy, the provisions for the abolishment of inheritance, the recognition of the social obligation for the care of children, the re-establishment of the family on the basis of descent, and the removal of the cruel discriminations against so-called "illegitimate" children. These provisions, to be sure, are not all essentially socialistic. Certain reforms in these directions have been accomplished in the bourgeois states of the west. But in Russia it was left to the proletariat to accomplish many revolutionary changes which the bourgeoisie had failed to accomplish. The western reader, who is at least familiar with, if not altogether habituated to, such ideas as the separation of Church and State, equality of the sexes, and the recognition of the rights of "illegitimate" children, must be constantly reminded of the heavy burden laid upon the Russian proletariat by the economic and social backwardness of the country at the moment of the revolution. The full significance of such an achievement as this code can only be realized in the light of these special difficulties involved in the proletarian struggle in Russia. The Russian workers had not only to destroy capitalism; they had also to attack the remnants of feudalism which the Russian bourgeoisie had been too inert and too timid to disturb. Their success in this ·double task is the measure of their creative strength and ability.
Only time and experience will show how many of the provisions of this code belong to the transitional category, features which are destined to vanish with the more perfect establishment of the socialist order. In certain clauses, however, there is clearly to be discerned a conscious recognition of conditions and habits of life surviving from the old order. Such survivals are inevitable at this time when neither the economic nor the psychological transformation is complete. There are pro-visions respecting property and income which will inevitably be subject to obsolescence or amendment. The law of guardianship, essentially revolutionary as it is, is yet no more than a first tentative approach to the realization of collective responsibility for the care of the young. The laws of marriage and divorce still bear traces of the passing order, frank and sensible acknowledgment of the existence of certain economic and psychological conditions only to be overcome when the complete change is accomplished.
The case of the marriage laws affords an excel-lent illustration of the peculiar problem which con-fronted the Russian proletariat, and of the method in which that problem was met. Certain critics have come forward to argue that there is nothing very revolutionary in substituting registration by the civil authorities for the religious ceremony. Why abolish the church marriage only to substitute a state marriage? The answer is that this present marriage law i at once the most revolutionary and the most socialistic which could be devised to meet the special circumstances. The alternative would have been to have abolished the religious ceremony as a legal requirement and to have omitted the civil contract. But this would have left marriage merely where it was before, in the hands of the church, the prey of ancient superstitions and clerical domination. On the other hand, by substituting civil registration for the religious ceremony as the required form, a formidable blow was struck at clerical control. It should be noted, of course, that the present law in no way interferes with the right of those who desire to be married by religious ceremony. (The parties may, as is the custom in France, where only civil marriages are valid, supplement the civil contract with the religious ceremony.) But the religious ceremony is shorn of its legal significance and obligation, and is replaced by a wholly new form. This is more effectively revolutionary than it would have been to have left the supremacy of the church uncontested in this field. The law, however, goes further than this. It abolishes all the old feudal impediments to marriage, such as differences in faith and other religious prohibitions which were enforced under the old regime. The reformation of the divorce law was one of the revolutionary changes left for the Russian proletariat to accomplish. The marriage law as it stands in this code no doubt awaits re-vision in the light of experience gained in the new order. The framers of the law would claim no more than that by freeing both men and women from the oppressive tyranny of the old bourgeois and feudal concepts of the marriage relation, they have opened the way to further progress.
As belonging to the third class of provisions contained in the code, the first beginnings of new forms, emerging into view even before the old forms have been completely destroyed, we must count the careful arrangements for the registration of vital statistics, for a scientific computation of social factors. Here we get a glimpse of a governmental function which is statistical and informative rather than magisterial and repressive. As A. G. Hoichbarg, in his preface quoted above, remarks, "the registration of vital statistics, particularly of birth and death, and especially the central bureau engaged in the constant registration of the whole living population, on the basis of information collected by the local bureaus, would seem to be indispensable even in the perfect socialist society, in which the constant computation of the population, with scientific study of the causes of death, of migration, of under or over population, and the adjustment or correction of these conditions, would appear to be even more essential than in the past." It is true, of course, that the collection of vital statistics is not in itself an innovation of the proletarian revolution. It has been practiced in varying degrees of thoroughness and sincerity in bourgeois states. How far these states have been able or willing to draw useful or honest conclusions from such statistics as they have gathered is an interesting subject for study. And how far they have been able or willing to act, and in what direction they have acted, upon such conclusions as have been drawn, is an even more significant question upon which we cannot dwell here. There will be discerned at first glance, however, in this code, as well as in other codes formulated by the proletarian power, a wholly new attitude towards this statistical function, a new appreciation and elevation of its dignity, as though here were something most important, something that mattered. In this tentative form we see the beginning of an important function in the computation and appraisement of social statistics which will survive and achieve its highest place in the society which sincerely appreciates and can freely utilize such knowledge.
The interested student will discover for himself many other provisions in the code which are essentially conditioned upon the new order, provisions constructively socialist as distinguished from those less permanent but no less important measures which are purely militant blows in the class struggle, or that other class of transitional features bridging the gap from the old to the new. The intermingling of the three strata in this code will leave an instructive record for the historian, who will learn from them, as the geologist learns from the overlapping rock formations, the various stages of the revolutionary struggle.
The code is a superb rebuke to those psychopathically afflicted persons who spread the sickly tattle about "nationalization of women." The laws are perhaps distinguished above all else by their recognition of the rightful social function and economic status of women. They may be searched from beginning to end without disclosing any trace of the old economic, political and legal discriminations between the sexes. The slate is wiped clean. Nothing remains of the ancient slavery or the old taboos. This in itself, to be sure, is no complete solution of the "woman question". No law can annihilate custom and prejudice. That must be left to other processes. But this code opens the way. "It establishes," says Hoichbarg, "absolute equality of men and women before the law. So far as it is possible to free women in the period of transition before the complete establishment of socialism, this law frees her and enables her the more readily to accept the principles of socialism which will ultimately free her." Moreover, it will be seen that the code does not rest with a mere tacit assumption of the economic equality of the sexes. It does more than merely ignore the old discriminations. It contains certain clauses definitely aimed to destroy the effect of those customs w ch tended to oppress women.
In marriage and divorce and with respect to children, the code establishes equal and mutual rights and obligations for men and women. The woman's economic rights and her private possessions are carefully protected against any operation of bourgeois and feudal discriminations and usurpations. "Marriage does not establish community of property between the married persons" (Section 105). In order that the intention of this clause shall not be set aside by private agreement obtained under the pressure of the old customs which operated to diminish the wife's economic rights, a succeeding clause provides that "agreements concluded between married persons tending to impair the rights of the husband or the wife over his or her properties shall be deemed void and not binding upon any-persons whatsoever including the parties to said agreement" (Section 106). Another pro-vision deals a death blow to the old concept of the slave wife: "The change of residence by one of the parties to a marriage shall not impose an obligation upon the other party to follow the former" (Section 104). The law provides that parental authority over the children shall be exercised by the parents jointly and refers disagreements to the local courts (Sections 150, 152).
The family is re-established upon the basis of actual descent. No distinction is made, either in respect to parents or children, between the rights and duties assumed in marriage and those incurred by a union outside of marriage. The cruel discriminations against "illegitimate" children are swept away in one stroke. "Children descending from parents who are not married have equal rights with those descending from parents living in registered marriage" (Section 133). This provision is made retroactive to restore their natural rights to children born out of marriage previous to the enactment of the code. "The right to establish the actual descent of a child is reserved to the interested parties, including the mother" (Section 136). The rights of children of unmarried parents are safeguarded by the provision of a special register for recording parentage in such cases. Full obligation is imposed upon the unmarried father for his equal share with the mother in the expenses connected with the gestation, delivery, and subsequent maintenance of the child (Sections 140-144). The law at every stage gives careful attention to the protection of the children in their personal and economic rights. Parents are obliged to keep their children with them and are responsible for their care and education and their "instruction in useful activity" (Sections 154-156). Further than that, "parents are responsible for the protection of the personal interests and economic rights of their children" (Section 155). As we have seen above, dis-agreements in the exercise of parental authority must be referred to the local courts. In other respects, also, the children are protected from becoming the unhappy victims of parental disputes. If the parents agree, they may decide what religious belief shall be professed by their children under the age of 14; but in default of agreement between the parents, the children shall be considered to profess no religion until they reach an age at which they can determine the question for themselves (Section 148). In the case of parents living apart who can-not agree with which one the children shall live, the matter is to be decided by the local court (Section 158). Parents may not contract for the employment of any of their children between the ages of 16 and 18 without the child's consent (Section 157). Employment of children under 16 is forbidden by the labor laws. "Parental authority shall be exercised exclusively for the benefit of the children and in case of misuse the court may deprive the parents of their parental rights" (Section 153). Suits for the deprivation of parental rights may be brought by representatives of the government or by a private citizen. The loss of parental rights, however, does not absolve the parents from the duty of contributing to the maintenance of the children (Section 169). The obligation of the parents for the care, education and maintenance of their minor children is accompanied by an equal obligation upon mature children for the maintenance of their parents if the latter are indigent and unable to work, provided the parents are not receiving support from the government (Section 163). Beyond these mutual obligations for care and maintenance, however, there are no economic privileges established by descent. "Children have no right to the property of their parents, nor parents to the property of their children" (Section 160).
The right of inheritance, either by law or by will, was abolished by a decree of the All-Russian Central Executive Committee of April 27, 1918. The provision within the present code for the distribution of a maintenance allowance out of the estate of the deceased to needy relatives who are incapable of work follows a similar provision in that decree and in no wise contravenes the revolutionary principle of the abolition of inheritance. The process of this provision is merely that of an allocation to the needy relatives of a certain amount out of the estate of the deceased, the whole of which reverts to the government. This is an arrangement of convenience in the period of transition before the complete realization of the social obligation for the support of those incapable of their own maintenance. Similarly the earlier decree provided that small properties not exceeding 10,000 rubles should pass to the spouse and relatives of the deceased. Here again there was no recognition of any inalienable right to succession, but merely a convenient method by which the government relieved itself of the trouble of assuming the control and disposition of a great number of small properties. Another provision of the earlier decree is repeated in this code; namely, the recognition of the prior claim of needy spouse or relatives to contribution out of the estate of the deceased in preference to the claim of any creditor.
Although these clauses obviously fall within the category of provisions which will become superfluous and inoperative with the more complete achievement of socialism, they have nevertheless a distinctly revolutionary character. Of this portion of the code Hoichbarg says:
"While we were abolishing the private right of inheritance, it was impossible not to take into ac-count the existence of individual families and the fact that free education and maintenance of children by society has not yet been thoroughly accomplished, and that the social insurance of all persons incapable of work has not yet been secured. For this reason, 'until these measures of social security have been realized, there has been preserved a certain form of succession, purely fortuitous and practical, intended to secure the well-being of the spouse and near relatives of the deceased, in so far as they may be in need and unable to work. The security afforded by these provisions, however, is extended to a much larger circle of persons, and with a greater probability of usefulness, than was afforded under the old laws of individualistic inheritance. In the first place, no distinction is made in this respect between relationship established by marriage and relationship by union outside of marriage. By the old laws a child born 'out of wed-lock' had some right to be supported by the father during his life time, but on the death of the latter immediately lost all such rights. By the decree annulling the rights of inheritance such a child is secured equal rights with any other children to the receipt of support out of the estate of the deceased father. Secondly, by the old law it frequently happened that creditors of the deceased, having priority, received the entire estate and the successors nothing. By the decree annulling inheritance, the rights of needy and incapacitated relatives to receive maintenance during their life are justly held more sacred than the rights of the creditors. The latter receive their share only after the claim!! of the relatives who are unable to work for their own support are satisfied. And, moreover, in satisfying the claims of the latter, regard is given not to the nearness of their relationship but to their respective neediness."
In the careful provisions of the guardianship law there will be found the fundamental conception of the social obligation for the care and security of children. These, too, are merely transitional measures which take into account the practical necessities of the immediate circumstances, and which, while working within the limitations of the present, hold clearly in view the social and psychological goal to be achieved.
In the present translation of the Code no at-tempt has been made to follow the formalities of English legal rhetoric and terminology. The purpose has been rather to make the text clear and understandable to the ordinary reader.
New York, December, 1920.
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