THE CONCEPT AND ESSENCE OF CUSTOM AS A SOURCE OF FAMILY LAW

Abstract

Abstract. The scientific article is devoted to the analysis of custom as a source of family law. It is emphasized that the significance of custom as a source of law is due to the peculiarities of the legal consciousness of Ukrainian society. In modern legal science, custom is considered as a social and normative phenomenon that arises as a result of the long-term and repeated application of a certain rule of behavior, which is recognized as mandatory within a specific community. In the Family Code of Ukraine, customs are used as a means of regulating family and legal relations, in particular, this is provided for by articles: 11 (taking into account customs when resolving family disputes), 35 (the right to choose a

surname when registering a marriage), 51 (the right of spouses to respect for individuality), 146 (determination of the name of the child). It is emphasized that after recognition by the state and inclusion in the mechanism of legal regulation, custom acquires the features of a source of family law, namely: 1) duration and repeatability of application; 2) social recognition; 3) publicity; 4) universality; 5) normativity; 6) legality and legitimacy. Attention is also focused on the need to distinguish concepts that have similar external features - custom, business customs, tradition, morality. Despite the similarity, these categories differ in legal status, degree of obligation and scope of application. It is determined that legal custom can be applied both by courts and other law enforcement agencies, and by citizens - members of the relevant ethnic or social group - provided that it does not contradict the norms of family legislation and the moral principles of society. It is concluded that the norms of morality in themselves are not sources of family law, but it is compliance with moral principles that is the criterion that allows us to distinguish legal customs from other social norms. In the field of family law, legal custom is most closely related to traditions and morality, since they all form a behavioral model in the family. At the same time, only legal custom, subject to compliance with certain conditions, becomes legally binding and can be applied by the court to regulate family relations.