Family Law in the Russian Federation: Overview | Practical Law

Family Law in the Russian Federation: Overview | Practical Law

A Q&A guide to family law in the Russian Federation.

Family Law in the Russian Federation: Overview

Practical Law Country Q&A 4-569-5106 (Approx. 20 pages)

Family Law in the Russian Federation: Overview

by Catherine Heath, Moscow Region Bar Association
Law stated as at 01 Nov 2023Russian Federation
Please note the law-stated date of this resource. It does not consider recent events, including legal developments related to the 2022 Ukraine crisis. For resources concerning these topics, see Russia Sanctions and Related Considerations Toolkit.
A Q&A guide to family law in the Russian Federation.
The Q&A gives a high-level overview of key issues including jurisdiction and conflict of law; pre- and post-nuptial agreements and matrimonial property regimes; divorce, nullity, and judicial separation; children; surrogacy and adoption; cohabitation; family dispute resolution; civil partnership/same-sex marriage; and controversial areas and reform.
This Q&A is part of the global guide to family law.
This global guide is published in association with the International Academy of Family Lawyers.

Jurisdiction and Conflict of Law

Regulatory Framework

1. What are the primary sources of law in relation to marriage, marital breakdown and the welfare of children and give a brief overview of which courts will have jurisdiction to hear the dispute?

Sources of Law

The primary sources of Family Law in Russia are derived from the Federal Constitution of Russia (Constitution), federal statutory law and international law.

Domestic Law

The statutory law framework includes the:
The major federal acts in the area of family law are:
  • Federal Act on Acts of Civil Status 1997.
  • Federal Act on Guarantees of the Rights of the Child 1998.
  • Federal Act on Custody and Guardianship 2008.
Russia follows a civil law system, where the Constitution and codified law provide an overarching framework at the federal level, acting as the primary source of law. Secondary legislation is enacted by federal and regional lawmakers to tackle specific issues and facilitate the implementation of primary laws. It must be consistent with the Constitution and Codes.

International Law

The Federal Constitution 1993 states that:
  • The generally recognised principles and norms of international law and the international treaties of the Russian Federation constitute an integral part of its legal system.
  • If an international treaty of the Russian Federation establishes other rules than those stipulated by the law, the rules of the international treaty will apply.
    (Article 15(4), Constitution).
This rule, however, was significantly restricted by the amendments to the Constitution introduced in 2020. The amendments included a new Article 79 which provided for the supremacy of the Russian Constitution where international treaties or decisions by international bodies conflict with it.
Russia has become a party to a large number of international statutes including the:

Court System

The judiciary in Russia interprets and applies law.
The hierarchical courts structure includes the Constitutional Court and the Supreme Court of the Russian Federation (Supreme Court) at the top. District courts are the primary trial courts, while regional courts are the primary courts of appeal.
As a matter of law, the doctrine of judicial precedent does not apply in Russia. However, some decisions of higher courts may have influence on those of lower courts.
The Supreme Court, along with its Plenum, provides clarifications of the court practice to ensure the consistent application of laws. These clarifications are binding on lower courts.
Lower courts must adhere to the directions provided by the appeal courts when the matter is referred for retrial, ensuring a uniform interpretation of laws.
There are no specialised family courts or divisions of court. District courts, which have general jurisdiction, deal with family matters at first instance.
Local justices of the peace preside over divorce matters that do not involve parenting issues or property disputes where the spousal asset pool is more than RUB50,000 (about USD520).
Proceedings are typically held in open court. However, in certain cases where confidentiality needs to be upheld, including all proceedings concerning children, the matters are heard in closed court.

Jurisdiction

2. What are the main requirements for local courts to have jurisdiction in relation to divorce, property and children proceedings?
In broad terms, the jurisdictional test is based on three key factors: the parties' residency, their nationality and the location of the property.

Divorce

The jurisdiction of courts in divorce matters is extensive. Where one of the spouses is a foreign national or a stateless person, courts have divorce jurisdiction if:
  • Either spouse is resident in Russia.
  • Either spouse is a Russian national.
  • The respondent spouse has property in Russia.
(Section 402(3)(2), Civil Procedure Code.)

Same-Sex Spouses and Civil Partners

Same-sex relationships and civil partnerships are not recognised by Russian family law.

Property

Russian courts have jurisdiction in financial family disputes involving foreign nationals where any of the following apply:
  • The respondent is resident in Russia.
  • The respondent has property in Russia.
  • The applicant is a Russian resident for spousal maintenance matters.
(Section 402(3), Civil Procedure Code).

Children

The courts have jurisdiction in relation to children of parents who are Russian nationals and who are resident in Russia.
Courts have jurisdiction in matters relating to children that involve foreign nationals where any of the following apply:
  • The respondent parent is resident in Russia.
  • The respondent has property in Russia.
  • The applicant is a Russian resident in child support and paternity matters.
(Section 402(3)(3), Civil Procedure Code).

Domicile, Nationality and Habitual Residence

3. How do the concepts of domicile, nationality and habitual residence apply in relation to divorce, financial arrangements, and children?
In Russian law, there is no specific concept of domicile or habitual residence. However, the jurisdictional test is often based on the concept of permanent residence, referred to as the "place of residence" or "permanent registration’’.
Permanent residence is the address at which a person primarily or permanently resides (section 20(1), Civil Code). It is defined as "a house, an apartment or any other dwelling where a person permanently or temporarily resides as an owner, tenant or on another legal basis" (section 2, Freedom of Movement Act 1993).
All Russian citizens are required by law to complete residential registration. Whether the individuals reside within the country or overseas, they are legally considered to be Russian residents for the purposes of family law proceedings as long as they maintain their permanent registration in Russia.
This is different for foreign nationals. By virtue of law, they can only have a temporary registration within the country. Whether they are permanent residents for the purposes of family law proceedings is determined by analogy with tax legislation. Specifically, it is based on the duration of their stay within the country. They are deemed residents of Russia if they spend 183 days or more in a year there (as stated in section 207 of the Tax Code).

Conflict of Law

4. What procedure applies for a party applying to stay proceedings in favour of a foreign jurisdiction? What factors do local courts take into account when determining forum issues?

Procedure

There is no concept of appropriate forum (forum conveniens) in Russian law. If the matter falls under the jurisdiction of Russia, the court will proceed with the case.

Factors

A case will be dismissed and proceedings terminated if all of the following conditions are met:
  • There are ongoing legal proceedings in a court located in a foreign jurisdiction.
  • The proceedings involve the same parties, the same subject matter and the same grounds.
  • The proceedings were initiated before those in Russia.
(Section 220, Civil Procedure Code.)
The above applies solely to cases in which overseas court orders can potentially be recognised and enforced in Russia, as outlined in section 409 of the Civil Procedure Code. Recognition of a foreign decision is contingent on meeting one of the following requirements:
  • The decision does not necessitate any enforcement (such as paternity or divorce court rulings).
  • The competing jurisdiction is a reciprocating jurisdiction (that is, a country that has a treaty on mutual recognition and enforcement of court orders in family matters with Russia).
If a foreign court order cannot be enforced in Russia, the court will proceed to resolve the matter, disregarding any ongoing overseas proceedings.

Anti-Suit Injunctions

Russian courts do not impose anti-suit injunctions.

Applicable Law

5. Are foreign nationals treated differently on divorce?
In family matters, foreign nationals typically enjoy the same rights as Russian citizens. However, the international nature of a case may impact the selection of applicable laws governing the parties' dispute.
The marriage termination procedure is regulated by Russian law (section 160(1), Family Code).
Financial rights and obligations of the parties are determined by the laws of the country where they currently reside or previously were residing together. If a couple never shared a common place of residence, Russian law applies (section 161(1), Family Code).
When two parties who have no common citizenship or residency enter into a pre- or post-nuptial agreement, they can elect the law of the country that will apply to their agreement. Similarly, they can select the appropriate forum to resolve any future disputes related to the agreement. If no forum is chosen, the Russian court will hear the dispute if the agreement is to be performed or partly performed in Russia (section 402(6), Civil Procedure Code).
Parental rights and responsibilities are governed by the law of the country where the parents last lived together. If they did not have a common place of residence, the law of the state of which the child is a national will apply. In child support and other children-related matters, the applicant can request the court to apply the law of the jurisdiction of the child’s habitual residence (section 163, Family Code).

Service of Proceedings

6. What are the requirements for service of divorce, financial and children proceedings in your jurisdiction?
The service of court documents including initiating proceedings is typically conducted by registered post, telegram or phone. In some cases, the documents can be served by electronic means.
The recipient is deemed notified of the day and time of the hearing at the time of notification, even if they refuse to accept the service.
Although Russia is a signatory to the HCCH Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 (Hague Service Convention), it specifically opted out of the postal service procedure. Therefore, international service on respondents located in Russia is conducted by sending a request for service to the Central Authority (at the Ministry of Justice), which sends the foreign proceedings to the appropriate district court. The court notifies the respondent of a hearing date at which time the service is deemed to be effected.

Pre- and Post-Nuptial Agreements and Matrimonial Property Regimes

Validity of Post-Nuptial Agreements and Matrimonial Property Regimes

7. To what extent are pre- and post-nuptial agreements binding?
There is no distinction between pre-nuptial and post-nuptial agreements in Russian law. In both cases the legal instrument is known as a "marriage contract". If the couple is already married, their marriage contract is effective as soon as it is executed and certified by a notary. If the contract is signed in anticipation of a forthcoming marriage, it too must be personally executed and notarised but only comes into force once the parties get married.
A marriage contract governs the property rights and responsibilities of spouses. Its scope is limited to matters of a strictly financial nature. Consequently, it does not encompass areas such as parenting, child support or personal obligations between spouses.
The procedural formalities of entering into a marital contract are minimal. It is not mandatory for the parties to obtain independent legal advice. The contract must be signed by both parties and witnessed by a public notary.
There are several grounds on which a marriage contract can be set aside, including:
  • Non-compliance with the prescribed requirements.
  • Fraud.
  • Mistake.
  • Misrepresentation.
  • Lack of capacity.
  • Duress.
In addition, a marriage contract can be rendered null and void if it places one of the parties in an "extremely unfavourable position" (section 44, Family Code). This means that the agreement is unjust and inequitable and one in which the rights of one spouse are substantially compromised by the contractual terms.
8. Do matrimonial regimes exist in your jurisdiction and is there a default matrimonial property regime?
The default spousal property regime is joint property (section 34, Family Code). Under this regime, each spouse enjoys equal rights to the joint assets.
The default position can be altered by a marriage contract in which the spouses or prospective spouses can elect a separate property regime to apply to all or part of their assets and liabilities. Such an agreement becomes binding on the parties.

Default Regime

Although joint property is the default regime, not all assets held in the names of the parties are considered part of the spousal asset pool.
Joint property refers to the assets and liabilities of the parties to a marriage, including:
  • Remuneration.
  • Business earnings.
  • Pension.
  • Social security benefits.
  • Movable and immovable property acquired with the joint funds of the spouses.
  • Securities, participation shares, deposits and shares in the capital of credit institutions and businesses, and any other property acquired with the income received by one or both parties during their marriage and held in the parties' joint or individual names.
The following are excluded from the joint assets:
  • Property owned by the parties before marriage or acquired with the funds accumulated before marriage.
  • Property received as a gift or inheritance or through other gratuitous transactions.
    (Section 36, Family Code.)

Procedure

In certain instances, the court can declare individual property of one of the spouses to be joint property. This situation may arise when, in the course of the marriage, the value of the separate property significantly appreciated due to any of the following factors:
  • Joint investments of the spouses.
  • Personal investments of the other spouse.
  • Improvements made by the other spouse.
(Section 37, Family Code.)
9. How are foreign separation of property agreements and pre- and post-nuptial agreements treated by the courts in your jurisdiction?
A pre- and post-nuptial agreement executed in a foreign country is valid and enforceable in Russia as long as its provisions align with the fundamental principles of Russian law. Consequently, if an agreement is in conflict with Russian laws, it is likely to be deemed invalid.
For example, a pre-nuptial agreement entered into by same-sex spouses will have no force or effect in Russia. This is because the Constitution explicitly defines marriage as a union between a man and a woman. Accordingly, neither the marriage nor any associated agreements will be recognised.
When an overseas lawyer is drafting a pre- or post-nuptial agreement that is intended to be performed or part-performed in Russia, it is prudent for them to align the terms as closely as possible with the provisions of Russian law.
Inevitably, foreign agreements may contain provisions that are incompatible with Russian law. For instance, an Australian binding financial agreement might address family trust structures that do not exists in Russian law or state the parties' intention to execute a mutual deed of release relinquishing their claims to each other's estate, which is not permitted under Russian law. These provisions alone do not automatically render the agreement invalid. It is the cumulative impact of such provisions that may ultimately bring it in conflict with the principles of Russian law and be set aside by the court on that basis.
The extent and importance of these conflicting provisions will impact the validity of a foreign agreement in Russia.

Divorce, Nullity and Judicial Separation

Recognition of Foreign Marriages/Divorces

10. Are foreign marriages/divorces/civil partnerships recognised?

Marriages

A foreign marriage is considered valid if it both:
  • Meets the legal requirements of the country in which it was performed.
  • Is not void under Russian law.
A marriage can be invalidated on the following grounds:
  • One of the parties was already married at the time of the second marriage.
  • The parties are closely related, such as direct relatives in the ascending or descending lines.
  • Either party was incapacitated due to a mental disability at the time of the marriage.
(Section 14, Family Code.)
Same-sex marriages and religious marriages are not legally acknowledged.
However, in exceptional cases, a marriage involving individuals aged 16 and older can be recognised.
In 1996, the Family Code of the Russian Federation bestowed the authority upon regions and territories to determine their own minimum age for marriage, even below 16 years, in exceptional cases. For example, in Chechnya, the local laws have set the age at 14.

Civil Partnerships

Russian family law does not recognise civil partnerships.

Divorces/Annulment

Foreign divorce and nullity orders are considered valid unless either party raises objections to their recognition (section 409, Civil Procedure Code). There is no requirement to register a foreign divorce with the Russian authorities.

Divorce

11. What are the grounds for divorce?
Russia was the first jurisdiction in modern history to introduce no-fault divorce, in December 1917.
A marriage is dissolved on the grounds of irretrievable breakdown (section 22, Family Code). No specific duration of separation is mandated. To establish the marriage breakdown, it is enough for one spouse to initiate the divorce proceedings.

Nullity

A marriage can be declared void by the court based on one or more of the following grounds:
  • Involuntary entry into the marriage.
  • Either party being below the legal age for marriage.
  • One of the parties being already married at the time of the marriage.
  • The spouses are closely related, such as direct relatives such as parents and children, grandparents and grandchildren, siblings, half-siblings, adopted children and their adoptive parents.
  • Mental disability of either party at the time of the marriage.
  • One spouse concealing the fact of having a sexually transmitted disease or HIV.
  • The marriage being fictitious, registered without a genuine intent to establish a family.
In certain cases where the grounds for nullity no longer exist at the time of the hearing, the court has the authority to dismiss a nullity application. For example, if both spouses have reached the age of 18 and are still living together as husband and wife.
A marriage that is void holds no legal effect (section 30, Family Code). Consequently, any marriage contracts entered into by the parties are similarly rendered null.

Judicial Separation

Separation is not a legally recognised concept and, therefore, does not carry any legal implications.
12. What is the procedure and timeline for divorce?

Divorce

There are two mechanisms for marriage termination:
  • Administrative divorce. This applies where:
    • there are no minor children involved and both parties mutually agree to dissolve their marriage (section 19, Family Code).
    • one of the spouses has been declared missing or legally incompetent, or
    • a spouse has been sentenced to a term of imprisonment exceeding three years.
    If both parties consent, they can submit a joint application for divorce to the Civil Acts Registration Office. The marriage will be legally terminated after a month, provided that neither party withdraws their consent.
    Russian consulates and diplomatic missions have the power to register civil acts and grant divorces to Russian nationals living overseas (section 160(2), Family Code).
  • Judicial divorce. Where one party opposes the termination of marriage or where there are minor children involved, the judicial procedure of termination applies (section 21, Family Code). At the request of either party, the court has authority to grant a cooling-off period for up to three months. If, at the subsequent hearing, one of the spouses still seeks marriage dissolution, the court will proceed to grant a divorce order.

Nullity

See Nullity.

Judicial Separation

Not applicable (see Judicial Separation).

Religious Marriage and Divorce

13. Are customary and religious marriages and divorces recognised in your jurisdiction?
Religious marriages and religious divorces are not recognised in Russia.

Finances/Division of Assets

14. What powers do the courts have to allocate financial resources and property on the breakdown of marriage?
The default spousal property regime is joint property which applies by operation of law (section 34, Family Code). Under this regime, both parties are considered to have equal rights to joint property. In the event of separation, the assets and liabilities are divided equally between them (see Default Regime).
The parties can formalise their property settlement agreement by way of a marriage contract or refer their dispute for judicial determination.
15. What factors are relevant to the exercise of the court's powers?
The court can deviate from the presumption of equal shares in certain circumstances, such as when it is in the best interests of minor children or when it is required to protect the essential interests of one spouse. This situation may arise when one spouse, without a valid reason, fails to generate income or recklessly depletes marital assets (section 39(2), Family Code). This section is rarely applied and typically does not significantly increase the share of a spouse.
16. What is the court's current position on the division of assets?

Finances/Spousal Maintenance (Alimony)

17. How does ongoing spousal maintenance operate following marital breakdown? Is maintenance awarded for a fixed term or on an open-ended basis? Is there a set formula or do judges have discretion over quantum and term?

Spousal Maintenance

Spousal maintenance is awarded in specific circumstances. A spouse (or former spouse) is eligible for maintenance where:
  • A spouse becomes disabled during the marriage or within one year of its termination.
  • A spouse in a long marriage reaches pensionable age within five years of the divorce. (the current pensionable age is 55 for women and 60 for men).
  • A wife is pregnant at the time of the application.
  • A spouse who has the care of a child under the age of three.
  • A spouse is taking care of a disabled child born within the marriage and lacks the resources to meet their living costs
    (Sections 89 to 90, Family Code).

Basis for Award

Depending on the grounds of the spousal maintenance application, it can be awarded for a fixed term or on an open-ended basis.

Fixed Formula or Court Discretion

There is no prescribed formula for the determination of spouse maintenance. The court possesses discretionary powers over the amount and, in certain instances, the duration of the payments. The quantum of the award is contingent on the financial circumstances of both parties.
18. Is it common for maintenance to be awarded on marital breakdown?
Spousal maintenance awards are uncommon in Russia.
19. What is the court's current position on maintenance on marital breakdown?
A maintenance award must be sufficient to meet the party's living expenses. The law does not require the same standard of living to be maintained for former spouses as was enjoyed during the marriage. Consequently, significant maintenance awards are uncommon.
A court has the authority to dismiss a maintenance application or limit the duration of spousal maintenance in certain cases, for example if:
  • The marriage was short.
  • A party seeking maintenance based on disability became disabled due to alcohol or drug abuse or criminal activity.
Additionally, a maintenance application can be rejected if there is evidence of serious misconduct during the marriage, such as the dissipation of family funds on gambling or drugs.

Finances/Child Support

20. What financial claims are available to parents on behalf of children within or outside of the marriage?
Both parents have a responsibility to provide financial support for their children. If one parent fails to fulfil this duty, the other can apply for child support. This applies equally to children born to married and de-facto partners.
21. On what basis is child support calculated?
Parents have the option to either enter into a child support agreement or seek court orders if they cannot reach a mutually agreeable resolution. The legally prescribed amount of child support is determined based on the following guidelines:
  • One child: one-quarter of parent's income.
  • Two children: one-third of parent's income.
  • Three or more children: one-half of parent's income.
(Section 81, Family Code.)
The level of child support can be increased or decreased by the court depending on the financial and family circumstances of the parties. However, it is uncommon for a court to alter the amount prescribed by legislation. There is no upper threshold on the monetary amount of child support.
A child support agreement provides parents with greater flexibility, allowing them to choose from:
  • Fixed periodic payments.
  • Lump sum payment covering the entire amount due.
  • Transfer of property in lieu of child support.
However, an agreement cannot set the amount of child support at a lower rate than the minimum amount prescribed by section 81.
22. What is the duration of a child support order (up to the age of 18 years or otherwise)?
Support is payable until the child reaches the age of 18. The responsibility to provide financial support for children ends once they become adults, regardless of whether they are employed, attending university or in other circumstances.
An exception applies to an adult child with a disability that render them unable to support themselves. These persons may qualify for child support (section 75, Family Code).
23. Can a child (whether of legal maturity or otherwise) make a claim directly against their parents?
The application for child support is usually brought on by the child’s primary carer (typically, a parent with whom the child resides).
An adult disabled child can also initiate legal proceedings against their parent(s).

Enforcement of Financial Orders

24. What are the main methods of enforcement to ensure compliance with financial orders following divorce/dissolution in your jurisdiction?
Failure to comply with a court order can result in enforcement measures.
Breaching a court order is considered an administrative offence punishable by fine of up to RUB2,500 (USD27).
Failure to comply with property and maintenance orders can lead to the imposition of overseas travel restrictions.
In 2018, an amendment was made to section 315 of the Criminal Code, making contempt of court a criminal offence.
Contempt is defined as the malicious failure to obey court orders by a person who has previously been found guilty of an administrative offence related to the same court order. This offence carries a penalty of a fine of up to RUB50,000 (USD520) or imprisonment for up to one year.
25. What is the legal position on the reciprocal enforcement of financial orders?
If a party fails to comply voluntarily with foreign court orders for property settlement that are to be performed or wholly or in part in Russia, enforcement is only possible if the orders are granted by a court of a reciprocating jurisdiction. This means that the jurisdiction must have a treaty with Russia regarding the recognition and enforcement of foreign judgments in civil and family matters (section 409, Civil Procedure Code).
Enforcement of a non-reciprocating jurisdiction court order is not possible.
All immovable property situated within its territory falls under the exclusive jurisdiction of Russia. This means that any foreign orders purporting to deal with Russian real estate will have no legal force and effect in Russia regardless of the jurisdiction of origin.

Financial Relief after Foreign Divorce Proceedings

26. What powers are available to the court to make orders following a foreign divorce? If so, what is the legal basis for making such an application?
Divorce proceedings are typically separate from court disputes related to finances and parenting. As such, an international divorce does not preclude Russian courts from addressing any unresolved financial matters between ex-spouses.
Either party has the right to seek financial relief, as long as the Russian court has jurisdiction over the case. No special leave is required to initiate property proceedings in these circumstances.

Children

Custody/Parental Responsibility

27. What is the legal position in relation to custody/parental responsibility following the breakdown of a relationship or marriage?

General Position for Custody/Parental Responsibility

Separated parents, whether married or unmarried, have the option to formalise their mutually agreed parenting arrangement in the form of a settlement. Many parents manage co-parenting amicably without any formalities. If the parties are unable to reach an agreement, either parent has the option of initiating parenting court proceedings.
In Russian family law, there is a presumption of equal parental responsibility. This implies that both parents have equal rights and responsibilities towards their children (section 61, Family Code). They have both the right and the duty to take part in their children's upbringing and share responsibility for their children’s health, physical, psychological and social development.
Biological parents hold primary rights and responsibilities in caring for their children (section 63, Family Code).
Challenging the presumption of equal parental responsibility in court is a rare occurrence. In any case, it can be rebutted if the court is satisfied that children are at risk of violence or abuse in the care of one or both parents. In such cases, the court has the power to impose restrictions on parental rights or, in limited circumstances, revoke them entirely.
The court can request local Custody and Guardianship Authority to prepare family and welfare reports. In certain cases, the prosecutor and the authority must be joined as a party in applications to the court for orders for relinquishment, revocation, or restriction of parental rights, in particular.
Parenting orders typically remain in force until the child reaches 18, although they can be reviewed by the court before then in the light of significant new circumstances.

Parenthood Established in Another Jurisdiction

The Russian courts will recognise parenthood that has been established in another jurisdiction.
See Question 5. Parental rights and responsibilities are governed by the law of the country where the parents last lived together.
28. What is the legal position in relation to access/contact/visitation following the breakdown of a relationship or marriage?
If parents cannot come to an amicable resolution and there is a dispute about which of them the child should live with, either party can apply for a parenting order.
A parent living separately from their child has a right to communicate with them, and to participate in the child's upbringing and long-term decision-making (section 66(1), Family Code).
The parent with whom the child primarily resides has a corresponding responsibility to not hinder communication with the other parent, unless there is a significant risk of physical or psychological harm to the child (section 66(2), Family Code). The non-resident parent has a right to receive information about the child from educational, medical, social institutions and other relevant organisations.
When resolving parental disputes and determining the best interests of the child in a specific situation, the court considers the following factors:
  • Child's attachment to each parent and to their siblings.
  • Child's age.
  • Ethical and other qualities of the parents.
  • Each parent's relationship with the child.
  • Each parent's capacity to provide for the needs of the child, considering their occupation, financial and family circumstances.
    (Section 65, Family Code.)
Factors such as nationality, country of origin or residency generally do not impact parental rights and duties. However, when parents reside in different countries, the pattern of their contact with the child is inevitably influenced by the costs and time associated with international travel.
The presumption of equal parental responsibility does not mean that children will spend an equal amount of time with each parent. In most cases, a court will designate one party as the resident parent and allocate specific periods of time for the child to spend with the other parent.
The Russian courts typically favour mothers in parenting proceedings, especially when the matter concerns young children. Despite this, the law acknowledges the importance of children's views, taking into account their age and maturity, if the child is ten years of age or older.
When parents reside in different countries, the frequency of contact is adjusted based on their ability to regularly travel to Russia. It is not uncommon for a court to place restrictions on children's international travel if there is a risk of them being wrongfully removed from Russia or retained overseas (see also Question 29 and Question 30).
Members of extended family have the right to communicate with children (section 67, Family Code). The Custody and Guardianship Authorities can instruct parents to not obstruct such communication. If the parents fail to comply with the directive, the child's relatives, including grandparents, siblings and others, can apply to court seeking communication or visitation orders.

International Abduction

29. What is the legal position on international abduction?
Russia is a party to the following international treaties:
In 2014, the Russian Parliament adopted the Federal Act on Amendments to Some Legislative Acts of the Russian Federation in Connection with the Accession of the Russian Federation to the Hague Child Abduction Convention. The purpose of the Act is to address the existing loopholes in national legislation and establish effective mechanisms for the implementation of the two conventions in Russia. This legislation aims to bridge the gaps and provide practical solutions to ensure the conventions are effectively applied.
Both conventions are now within the jurisdiction of eight сourts.
The Civil Procedure Code outlines timeframes, service rules, and procedures related to the Child Abduction Convention and the Child Protection Convention. It also authorises private detectives' services where necessary, expands the authority of state bailiffs, and prescribes a comprehensive procedure for the handover of children.
Despite the substantial legislative reform in the area of international child abduction, there remains scepticism regarding Russia's willingness to uphold its international obligations under the two conventions.
The application of the two treaties is inconsistent, with few cases being reported.

Leave to Remove/Applications to Take a Child Out of the Jurisdiction

30. What is the legal position on leave to remove/applications to take a child out of the jurisdiction? Under what circumstances can a parent apply to remove their child from the jurisdiction against the wishes of the other parent?
In general, parents are free to travel to and from Russia without consent from the second parent. However, if a primary caregiver intends to permanently relocate overseas but faces difficulties obtaining the other parent’s consent, they may need to seek court orders allowing them to move. This is particularly important when it comes to visa requirements for the relocation process.
Court permission to leave Russia is necessary where child's name is included in the international stop-list at the request of one parent (section 21, Federal Law on the Procedure for Exiting and Entering the Russian Federation 1996).
Courts face the challenging task of finding a balance between the needs of a relocating parent and those of the parent remaining behind. Above all, they must prioritise the child's right to be raised and cared for by both parents. If the court determines that it is in the child's best interests to move, permission to relocate is granted.

Surrogacy and Adoption

Surrogacy Agreements

31. What is the legal position on surrogacy agreements in your jurisdiction? Is surrogacy available to individuals and cohabiting couples (both heterosexual and same-sex)?
The Federal Act on Fundamentals of Protection of Public Health in the Russian Federation (Health Act) came into force on 1 January 2012. This legislation, along with the Family Code and relevant regulations, provided a legal framework for the introduction of commercial surrogacy in Russia for the first time.
Surrogacy involves the act of carrying and giving birth to a child based on a contractual agreement between parties. The Health Act defines surrogacy as carrying and giving birth to a child under the terms of a contract between:
  • The surrogate mother and intended parents.
  • The donors of the egg and/or sperm for the embryo.
  • The surrogate mother and woman, who is unable to carry and give birth to a child for medical reasons.
(Section 55(9), Health Act.)
A surrogate mother must be a woman between 20 and 35 years of age who:
  • Has given birth to at least one healthy child of her own.
  • Has received a satisfactory medical report.
  • Has given a written informed consent for the medical reproductive treatment.
A married woman can only become a surrogate mother with the written consent of her husband. She must not use her own egg in the surrogacy arrangement (section 55(10), Health Act).
A married couple consenting to the implantation of an embryo in a surrogate mother can be registered as parents of the newborn child only with her consent (section 51, Family Code). Neither commissioning parents or the surrogate mother can challenge the paternity or maternity of the child on the grounds of their birth being a result of a surrogacy arrangement (section 52(3), Family Code).

Adoption

32. What is the legal position in relation to adoption? Is adoption available to individuals and cohabiting couples (both heterosexual and same-sex)?
The adoption process is governed by:
  • Sections 124 to 165 of the Family Code.
  • Chapter 29 of the Civil Procedure Code.
  • The Federal Act on the State Database of Parentless Children 2001.
  • Other federal laws.
Prospective parents can submit an application to either a regional or federal operator of the Parentless Children Databank to acquire information about children available for adoption. Through this process, applicants can access details regarding the child and their relatives and obtain an independent medical assessment of the child.
District courts typically handle adoption applications, but jurisdiction over foreign nationals and Russian citizens residing abroad lies with the Supreme Courts of territories, regions and so on.
Applicants must be at least 16 years older than the child they wish to adopt. Adoption by unmarried or same-sex couples is prohibited (section 127, Family Code).
Adoption can be denied if the applicant had their parental rights previously revoked, or if they have a criminal conviction for specific premeditated offenses.
Additional grounds relating to the applicants for the dismissal of an adoption application include:
  • Tuberculosis.
  • Substance abuse.
  • Infectious diseases.
  • Certain types of mental health disorders.
  • Other health disorders.
Child adoption hearings are held in closed court. The court is required to take into consideration the child's views if the child is at least ten years old. In some cases, the court can also give weight to the opinions of younger children.
The court allows adoption if it finds this to be in the best interests of the child and is satisfied that the candidates for adoption are fit and financially secure to provide for the needs of the child.
The adoptive parent can give the child a new name and change their birth information (section 134, Family Code).
A Russian child adopted by foreign parents retains their Russian citizenship.

Cohabitation

33. What legislation (if any) governs division of property and financial claims for unmarried couples on the breakdown of the relationship?
Russian family law does not recognise any forms of cohabitation. This form of family union lacks any legal status, irrespective of its duration, the birth of children of the relationship, or any other factors.
Consequently, the regime applicable to the assets of an unmarried couple is that of separate property.
Assets are considered the exclusive property of the partner under whose name they are held. The other partner does not gain any ownership or equitable rights over these assets, nor do they have any legal claim to them.

Family Dispute Resolution

Mediation, Collaborative Law and Arbitration

34. What non-court-based processes exist to resolve disputes? What is the current status of agreements reached through mediation, collaborative law and arbitration?
The Federal Act on the Alternative Procedure of Dispute Resolution with the Participation of a Mediator (Mediation Act) came into force on 1 January 2011. This landmark legislation marked the first time since the Soviet era that non-court-based dispute resolution processes were regulated. The Mediation Act introduced alternative dispute resolution processes in family law and other areas of law traditionally associated with the use of mediation.
The mediation process is guided by the following principles:
  • The mutual consent of the parties.
  • The voluntary nature of mediation.
  • Confidentiality.
  • Co-operation.
  • Equal rights of the parties.
  • The impartiality and independence of mediators.
(Section 3, Mediation Act.)
35. What is the statutory basis (if any), for mediation, collaborative law and arbitration?
There is no requirement to attempt family dispute resolution before issuing judicial proceedings. However, under section 4 of the Mediation Act, neither party can initiate court proceedings regarding the dispute for the entire duration of the mediation process.
The parties can undertake mediation at any stage of court proceedings. Information concerning mediation is privileged and cannot be sought from a mediator or organisation that provided mediation services, subject to certain exceptions set out in federal legislation, and in cases where the parties waived confidentiality.
If the parties deem it suitable, the agreement achieved at mediation can be formalised by way of consent court orders (section 12, Mediation Act). A mediation agreement that does not take form of court orders carries the force and effect of a contract, any breach of which can be remedied by the means provided in contract law.

Civil Partnership/Same-Sex Marriage

36. What is the status of civil partnership/same-sex marriage? What legislation governs civil partnership/same-sex marriage?
Same-sex marriage or any forms of civil partnership are not recognised under Russian law. Marriage is defined as a union of a woman and a man (section 1, Family Code). Marriage is the only form of partnership recognised in Russia as having legal status.

Media Access and Transparency

37. What is the position regarding media access to and press reporting of family law cases?
Family cases are predominantly heard in open court, except for matters that concern children (such as parenting, adoption and others), which are conducted in closed court. (section 10, Civil Procedure Code).
At a party's request, proceedings can be closed to the public in order to safeguard the privacy of the persons involved. While the merits of each case should be carefully assessed, these measures are likely to be authorised, provided they serve legitimate objectives.
Public hearings can be audio recorded. Photo and video recordings, and radio and TV broadcasts, of court sessions are only allowed with the leave of the court.
Decisions are made public, except where this could negatively affect the interests of underage children.

Succession Rights on Divorce/Dissolution

38. How does divorce impact succession and estate planning in your jurisdiction?
In the absence of a will or inheritance agreement, the estate is transferred to the statutory heirs according to the lines of succession. The first priority heirs of the deceased are their surviving spouse, children and parents. A former spouse is excluded from succession of a person if they die intestate.
In contrast, spouse’s succession rights pursuant to a will are not extinguished on divorce. The validity of a will that leaves assets to a spouse remains unaffected even if the marriage is subsequently dissolved.

Controversial Areas and Reform

39. What areas of the law (if any) are currently undergoing major change? Which areas of law are considered to be particularly controversial?

Family Law Reforms

Following the national referendum in July 2020, 206 amendments were introduced into the Constitution, some of which had a significant impact on family law in Russia.
Definition of marriage. The Constitution was amended to include the institution of marriage in its text and define it as a union of a man and a woman (Article 72). This put an end to the debate on whether any changes to family law encompassing same-sex and transgender couples are to be expected in the foreseeable future.
The constitutional amendments signify an increasing sense of nationalism and a departure from Western liberal ideals. Instead, there is a notable focus on upholding "traditional family values", prioritising the welfare of children and preserving the institution of marriage.
Children. Children were constitutionally declared the priority of the state policy for Russia (new Article 67.1, Constitution). The state was mandated to "create conditions that contribute to the comprehensive spiritual, moral, intellectual and physical development of children, fostering patriotism, civic engagement and respect for elders".
The changes sent a strong signal to the Parliament, prompting a raft of amendments to the Family Code and other laws to bring them in line with the Constitution.
Same-sex couples. The new provisions of the Family Code explicitly prohibit same-sex marriages, including marriages to transgender people. Same-sex couples cannot register their relationship in any form, nor are they permitted to adopt children or enter into any arrangements with potential surrogate mothers. This applies to same-sex couples legally married overseas in jurisdictions where such marriages are permitted by law. In addition, both partners in a same-sex relationship cannot be registered as the parents of their own children, although one of them will be able to register as a single parent.
On 31 July 2023, the Family Code was amended to mandate the termination of marriage if one of the partners legally changed their sex.
The area of family law has become politically motivated in recent years, with the lawmakers embarking on a course of distancing themselves from the human rights standards of the West and the values of liberal ideology.

Other Reforms

In 2015, the Russian Constitutional Court ruled that any judgment made by the European Court of Human Rights will be null and void if it contradicts Russian law.
  • The 2020 constitutional amendments included a new Article 79 which provided for the priority of the Russian Constitution in cases where international treaties or decisions by international bodies conflict with it.
  • On 15 March 2022, Russia officially notified its intention to withdraw from the Council of Europe. It has since denounced over 21 international treaties of the Council of Europe, including the European Convention on Human Rights.
Recent developments in Russia have been driven by a desire to safeguard the nation against external influences, but unfortunately, these changes are likely to lead to further isolation. The unpredictable nature of Russia's international affairs, coupled with its lack of commitment to uphold international law, are expected to define its trajectory in the foreseeable future.

Contributor Profile

Catherine Heath, Barrister

Moscow Region Bar Association

T + 7 499 6 776 667113 1161
E [email protected]
W www.divorceinrussia.com
Professional qualifications. Russian Federation, Barrister, 2000; Australia, Solicitor, 2012; Doctor of Law, Moscow State Law Academy, 2001; LLM, Moscow State Law Academy, 1998; JD, University of NSW, 2012.
Areas of practice. Family law, specialising in international matrimonial matters, complex property settlements, multi-jurisdictional pre-nuptial and post-nuptial agreements and children matters; civil law; property law; tax and inheritance law.
Languages. English, Russian
Professional associations/memberships. International Academy of Family Lawyers; Moscow Region Bar Association; Law Society of New South Wales; Family Law Section of the Law Council of Australia.
Publications.
  • Family Law Jurisdictional Comparisons, The European Lawyer, Thomson Reuters.
  • Family Law, a Global Guide, The European Lawyer, Thomson Reuters