Family Agreements in Private International Law

Abstract

The problem of family agreements is not new to Russian jurisprudence, but it has not lost its relevance for many years. Attention to the issue is shown by representatives of both family and international private law. Nevertheless, there are no comprehensive studies, although the need for the development of conflict-of-laws norms exists not only in theory, but also in practice. Thus, general conflict-of-laws issues concerning permissible ways of determining competent law need to be resolved, various types of family agreements need to be implemented in practice and to be recognized in foreign jurisdictions. The author substantiates that taking into account the interests of participants in a family legal relationship is best implemented within the framework of the choice of the law to be applied by the parties to the agreement. At the same time, the author expresses concern that third parties remain beyond the conflict-of-laws choice. Thus, ensuring their interests within the framework of the agreements reached has reasonable doubts. When determining the status of a family agreement in the absence of a conflict of laws choice of the parties, the author suggests paying attention to the shortcomings and gaps of existing conflict of laws regulations for those parties to family agreements who are undoubtedly able to conclude such agreements. Expanding the range of family agreements and the possibility of their conclusion between different family members requires, in the author’s opinion, not only their regulatory support that would include conflict-of-laws regulations taking into account the interests of their participants and third parties, but also rules on recognition and enforcement encouraging quick and effective settlement of a cross-border family case, as well as proving their status and the rights and obligations that follow herewith. In the light of the main directions of improving the family legislation of Russia, it is proposed to update conflict-of-laws decisions, to ensure a more tangible impact of recognition and enforcement mechanisms regarding the institution of Russian law under consideration.