Azerbaijan, Baku, Jan. 6/ corr. Trend K. Zarbaliyeva/ During divorce, the social provision of the woman and child is not a disputable issue in the European countries, unlike Azerbaijan.
The reason is that in the European countries, the sides sign a marriage contract before and during marriage. Although Azerbaijan's legislation envisages entering into a marriage contract, but few people sign it. As a result, big problems occur.
According to the statistic data, most part of civil cases filed in the courts occurs as a result of family disputes and takes a property character.
If the conditions of the Family Code regarding the marriage contract begin to act, it will be possible to avoid most part of these conflicts in future, experts said. If there is a contract, it will be known who gets property under the law and no discontent will occur. The marriage contract is a social protection of each woman and child, Asad Mirzaliyev, judge of Supreme Court of Azerbaijan, said. So, the people must ensure their social protection under law before determining family relations.
The marriage contract is an agreement which marrying people sign. It determines property rights and responsibilities of the married couple during marriage and divorce. The marriage contract is concluded in written form and approved by notary.
The marriage contract determines the rights and responsibilities connected with mutual maintenance of married couple, participation in incomes of each other, participation of each side in family expenditure, determines right of property share between the sides in case of divorce.
The signed marriage contract covers existing and future property of married couple. The marriage contract can be concluded both before and after marriage. The marriage contract comes into effect after the sides marry. Legal regime of property is determined in the contract.
According to the law, if there isn't any other rule in the contract, the property purchased by the married couple jointly during marriage is the common and divided equally property, Mirzaliyev said. "Taking into consideration who of married couple takes the underage child, his/her share can be increased. But other questions can be determined beforehand in the marriage contract. For example, it can be indicated that 1/3 of property purchased during marriage is due to husband, and other part to wife or vise versa," Mirzaliyev said.
According to statistics, the number of divorces increases in Azerbaijan. The State Statistics Committee reported that 33,400 marriages and 3,900 divorces were registered in the first half of 2008.
During six months of 2008, marriage contracts were concluded only during 13 of 33,400 marriages, Head Department of Registration and Notary of the Justice Ministry said. In 2007, marriage contracts were concluded during 16 of 81,756 marriages, in 2006 - 33 of 79,000 marriages, in 2005 - 19 of 71,619 marriages.
The example of marriage contract taken from Head Department of Registration and Notary of the Justice Ministry stipulates that the property purchased jointly during marriage, as well as granted by the parents or other people in case of marriage is considered as joint property of the married couple.
Incomes gained as a result of labor activity of the sides during the marriage are spent on mutual agreement.
If real estate or any other property, securities, share in property are purchased by personal funds of one of the married couple, it will be registered on his/her name.
Each of the married couple can use property independently without other's content.
The common joint property can be divided during marriage and three years after divorce on the basis of mutual agreement of married couple. While dividing property, the shares are determined on sides' agreement.
While sharing property, the property purchased on joint children's name is considered as personal property of children and is not taken into consideration while dividing.
While breaking the marriage contract, the sides take responsibilities for material provision of disabled husband (wife).
Everybody who submits application to civilian registry office to register marriage is offered to conclude a marriage contract, Mekhti Hasanov, chief adviser of department, said.
Saying that each section of civilian registry office has example of marriage contracts, the Ministry's official said that the sides intending to marry can determine terms of contract or change them in accordance with the legislation.
Most experts argue that
mental values hinder the parties from entering into a marriage contract.
Most people who marry do not realize the essence of a marriage contract or are
not aware of the contract, said a Supreme Court judge Mirzaliev. According to
him, sometimes people think that signing such a contract questions the
longevity of marriage, and for some reasons coming from the mentality the
contract is avoided.
Despite the relative growth compared to previous years, signing of marriage
contract is not widely spread, according to the General Registration and Notary
Directorate at the Ministry of Justice.
The reason for this is also associated with mentality. Ministry's official
representative thinks the problem should be solved not by coercion but
propaganda.
The head of the Notary Department Mehman Soltanov opposes forced entering into
a contract.
Those who say that
signing of a contract contradicts to the mentality state that the contract
casts a shadow on relations between a man and a woman, he said.
Soltanov believes that
at the time of marriage the persons interested in signing a contract are those
who have more wealth.
Attorney Gurban
Mammadov said that our mentality is wrong. He supports forced marriage
contracts. Mammadov believes the legislation should be changed in order to
provide a tradition of marriage contracts. "Then it will be possible to demand
anything. Otherwise, the voluntary character of the article in the law makes it
formal. National traditions will prevent its implementation."
Mirzaliev noted
inadmissibility of coercive marriage contract. Thus, the law provides for
freedom of contract signing. "If coerciveness of a contract is revealed, it
shall be considered invalid. And if coerciveness of a marriage is revealed, the
marriage shall be considered null and void," said the judge.
The judge believes that the civilian registry office should be more active in
promoting marriage contracts. "Those who have applied for marriage should be
informed of the positive part of the contract."
MP Musa Guliyev connects lack of interest in marriage contracts with the low
legal education.
"It is wrong to connect the problem only with the mentality. There is lack of
legal education among the citizens. There is one principle in Azerbaijan - the family must be maintained by the man. The woman does not bear economic
responsibility for the family. They think that it is the man to make decisions,
because he earns the money. But this is a wrong approach. Women should also
take part in the formation of the family budget. We should start with the family
to enhance the role of women in the society. And therefore marriage contract is
a condition," the MP said.
Guliev hopes contract institute will be formed in Azerbaijan in the next 50
years. "The generation to succeed us will take it easy," he added.
Attorney Mammadov argues that along with women's rights those of children are violated during divorce.
"During divorce, husband can restrict the right of wife to use apartment. But the child should be qualified for the full right to use apartment. If such disputes appear, the courts introduce the article 228 of the Civil Code instead of article 20 of Law on Rights of Children. The article 20 specifies that the child has the right to use the residence where he/she was born as other members of family. Courts mix the understanding of "place of residence" with the "right of use". The courts do not take into consideration the right of use of child. They say that the child should live with mother, since he/she remains under the patronage of mother," the lawyer said.
According to the judge of the Supreme Court Mirzaliyev, the lack of contract during cancellation of marriage in legal form causes a mass of problems with regards to determination of aliment and provision of housing. The judge said that to define status is impossible if there is no marriage contact of wife demanding aliment. Husband presents a document to court displaying that he is jobless or earns AZN 50. In this case, court has to define a stable amount of money. This kind of problem does not occur if the sides have a marriage contract that enables to define the status. "The marriage contract may stipulate that after divorce, husband would pay, for instance, AZN 300-400 aliment per child," the judge said.
Mirzaliev added that majority of civil lawsuits are connected with the liquidation or qualification of rights on use of residence (article 228 of the Civil Code). The article 228 of the Civil Code specifies that marrying couples should enter into a contact with owner of property which is approved by notary. In practice, the members of family or other users of residence do not sign any contract approved by notary, even a contract in a simple paper with owner. Usually during the initial period of such relations, persons move to residence and agree with owner to use it. Mirzaliev considers that while marrying, the couples must also have a contract with owner.
The judge thinks that signing marriage contract and the contract with owner must not be presented to consideration of the couples. MP Musa Guliyev said that the commission on social policy, to which he is a member, has already developed a law draft on making alternations regarding marriage contract in the Family Code.
Upon the project, to conclude a marriage contract will be proposed to the couples while presenting reference on marriage. The workers of the registry office will give information on the conditions of the marriage contract. Guliyev said that the testimony will be provided by the worker of the registry office. The couples will be given definite documents.
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