The presumption of paternity means that a child is descended from a man. Presumption of paternity, what is it? What is presumption of paternity? Legal meaning

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The law establishes a number of ways to include paternal information in children's documents. They can be entered by default, based on a statement from the parents or a court decision. Separately, it is necessary to highlight the situation when the mother of a newborn is married. Let's look at how the presumption of paternity works.

The concept of presumption of paternity

The presumption of paternity is an automatic certification of the fact of paternity, according to a marriage or divorce document (if the child is born within 300 days after the registration of the dissolution of the union). The presumption applies until proven otherwise in court.

When using the norm, the consent of the mother's spouse is not required. It does not matter whether he appeared in person to register the birth or whether the process took place in his absence.

In accordance with the law, to register the fact of the birth of a child, the presence of one of the parents is required. Therefore, both mother and father can submit documents.

If they are in official marriage, then information about the father is entered into the child’s record on the basis of the following documents:

  • marriage document;
  • divorce document.

Important! Information about the father is included, even if the man and the child’s mother are against it.

Duration of the presumption of paternity

The law establishes a number of situations when the presumption of paternity applies. From the moment information about the father is included in the children's documents, the man and child receive mutual rights and responsibilities. For example, a man is obliged to pay alimony. And if he dies without having time to challenge paternity, the child will be among the heirs.

The presumption of paternity is valid during the period of marriage and after its end:

  • within 300 days after registration of the divorce;
  • within 300 days after the death of the official husband.

From the moment the man's data is included in the birth record, .

How to challenge the presumption of paternity

Unfortunately, it is only possible to delete a child’s birth record with information about the father. In this way, the legislator protects children's interests. After all, the presence of an official father, even if not biological, is in the interests of the child. The husband of the child’s mother is obliged to pay alimony, take care of the minor, and monitor his education. Therefore, only a court can deprive a child of an official father.

Challenging paternity is not the same as depriving paternity rights. In the first case, this is the complete exclusion of information about the man from the children’s documents. From the moment the court decision enters into legal force, the child and the man have no relationship. They no longer have mutual property rights and obligations.

When paternity is deprived, a citizen loses only his rights. He cannot communicate with a minor, educate him, or receive financial assistance from the state for him. But he is obliged to continue to pay alimony, and in the event of his death, the child will inherit his property.

Therefore, if a man is sure that there is no biological relationship, he should challenge paternity. Since deprivation parental rights has completely different consequences.

Algorithm of actions

The procedure is formalized through the district or city court located at the place of registration legal representative child (Article 28 of the Code of Civil Procedure of the Russian Federation). In addition, documents can be sent to the judicial authority at the place of residence of the minor.

If he lives with his mother, then the mother will be the defendant in the process.

The process can be initiated by the child’s blood father, who wishes to exclude the information of the official husband from the children’s documents and establish his relationship. In such a case, the defendant will be the person included as the father.

Example. Irina filed a lawsuit to challenge the family connection. Her husband was included in the child's documents under the presumption of paternity. However, he is not the biological father. The court rejected the claims because the woman was not a proper plaintiff. Revoking paternity is not in the best interests of the child. But the man did not make such demands.

Stages of abolition of paternity:

  1. Preparation of documents.
  2. Filing a claim.
  3. Payment of duty.
  4. Referral to a judicial authority.
  5. Trial.
  6. Visit to the Civil Registry Office.

A limited number of citizens can initiate legal proceedings. Moreover, the mother of a minor cannot speak on her own behalf. She only represents the interests of the child in court. The same situation applies to the guardian of a minor.

A child can independently act in court to defend his interests only upon reaching 18 years of age. The exception is the situation when he is endowed with legal capacity until he reaches adulthood (emancipation).

Collection of documentation

The Civil Procedure Code provides for the plaintiff's obligation to attach a number of documents to the claim. Some of them are universal (attached to any claim), others relate to a specific legal process.

Documents are prepared in the form of copies. The citizen must print out the information in 4 copies (to the court, the defendant, a third party, the registry office).

Filing a claim

Important! If a woman previously managed to collect alimony for the maintenance of a minor, then the issue of canceling it also needs to be resolved in court. Otherwise, the obligation will remain with the payer.

The court has the right to appoint only with the consent of a child over 10 years of age.

Payment of duty

The applicant must pay a fee in order for the matter to be heard in court. If a receipt is not included in the application, the documents will be returned to the applicant.

In 2020, the cost of the duty is 300 rubles. The funds must be deposited in the bank using the details received in court.

Important! It is necessary to obtain details from the judicial authority in advance. Alternative option is to obtain information on the court website.

Payment must be made in a manner that provides an official receipt. For example, through a bank branch or through a terminal.

It is prohibited to make payments through online banking, since the account statement is not accepted by the court.

Referral to a judicial authority

The law establishes the following methods for sending documentation to the judicial authority:

  1. A citizen can submit an application independently. The number of copies of the claim and evidence must first be tediously printed. It is tedious to put the inscription Copy on each document. Additionally, you need to sign and date. The package of documents is submitted to the court office during office hours.
  2. A citizen can attract a representative. You must first issue a notarized power of attorney. The document must include the ability of the trustee to submit documents to the court and represent the interests of the principal in the process.

Important! The representative has the right to even sign the claim and copies of documents.

  1. A citizen can send documents by mail. To do this, you need to additionally prepare an inventory of the investment. It must contain a complete list of documents and the number of copies. It is advisable to send the envelope by registered mail.

Costs of reversing the presumption of paternity

The main costs are borne by the applicant:

  1. Registration of a notarized power of attorney – 1,500 rubles.
  2. Payment of duty - 300 rubles.
  3. Drawing up an application - from 3,000 rubles.
  4. Representation in court – from RUB 5,000.
  5. Conducting a genetic examination – 16,000 rubles.

Based on the results of consideration of the application, costs can be recovered from the defendant. To do this, you need to include a corresponding requirement in the claim.

Deadlines

The duration of the process differs depending on the specific situation. The minimum period is 2 months.

In addition, it will take another 30 days for the document to enter into legal force.

Depending on the specific situation, the period may be extended. For example, in the case of a judge’s vacation, a genetic examination being ordered, or the defendant’s illness. The maximum period has not been established. In practice, the process can last up to 6 months.

Consequences of revocation of the presumption of paternity

Excluding information has the following consequences:

  1. Termination of a relationship between a man and a minor.
  2. The man's information will be removed from the child's birth record.
  3. The minor receives a new birth registration document.
  4. A man cannot demand child support after he reaches adulthood.
  5. A man can challenge a notarial agreement and a court decision to collect alimony.
  6. The child and the man have no rights to each other's inheritance.

From now on they are outside citizens. Additionally, a man can exclude his last name from the “last name” column in the child’s documents. However, by agreement, it can be retained.

If the minor has reached 10 years of age, he must also be present in court. The court must take his opinion into account when changing the name.

Alimony

If a woman or guardian has recovered financial support for a child from the official father, then when challenging paternity it is necessary:

  • include in the claim a demand for cancellation of payments;
  • include in the application (if the woman reliably knew that the man was not the father, but collected alimony).

Example. Spouses Aliyeva M.P. and T.R. were married. After 3 years they decided to end the union. The man moved to another city and got a job. The wife began to live with another man. They had a child. According to the presumption of paternity, the newborn was registered as Aliyev M.P. The woman collected alimony. Since he had an official job, the bailiffs sent a writ of execution to the accounting department. The company began to transfer alimony payments. The man noticed a decrease in income after 6 months. He went to court to challenge paternity and cancel alimony. He invited witnesses as evidence. The applicant's demands were satisfied.

The presumption of paternity is used to protect children's rights. A man who is the official husband of the mother is considered by default to be the father of the child. Therefore, a citizen can receive paternal responsibilities even if he is not a biological father. If you find yourself in this situation, you should obtain legal advice. A specialist will help you draw up an action strategy and restore justice. Leave a request on the website and a lawyer will contact you.

  • Due to constant changes in legislation, regulations and judicial practice, sometimes we do not have time to update information on the site

Chapter 5

By nature, women are more dependent and less decisive than men. And their unscrupulous roommates take advantage of this. It is known that the overwhelming majority of women in a state of cohabitation would like to legalize their relationship. Any woman is looking for stability and reliability for herself and for her children. But the decision, as always, remains with men. And so, other “slaves of love” suffer for years, wait and ask their partners to formalize a legal marriage, but they only feed them with promises and say beautiful words about their “high and informal relations.”

Scientific journal Fundamental research ISSN 1812-7339 List of Higher Attestation Commission IF RSCI 1, 114

In a narrow sense, paternity is understood as the fact of a child’s origin from one or another father, while in a broad sense it refers to the rights and obligations of a man in relation to a child arising from the fact of origin. The author of this article believes that at this stage of development of family legislation there is a transition from the “narrow” (consanguineous) concept of paternity to a broader – social – interpretation of this concept.

establishing the fact of recognition of paternity

What is the presumption of paternity at the birth of a child and how does it work in marriage?

What is the presumption of paternity at the birth of a child and how does it work in marriageAverage rating 5 from 7 users

Translated from Latin, the word “presumption” means “assumption”. This term is often found in legal practice. Its essence lies in the fact that the assumption put forward is true until circumstances appear that prove the opposite.

As for the Family Code, namely the use of the term “presumption” as paternity, here it means the establishment of parental rights automatically. Taking this into account, a number of controversial situations arise when the father has to prove the opposite using papers.

How does this happen in practice and is it possible to challenge paternity if you are married to the child’s mother?

What to do if the father is not the father

Considering that paternity is established automatically, if a woman and a man are married and they have a child, then various types of disputes may arise here, for example:

  • when the wife cheated on her husband;
  • When married couple have not lived together for a long time, but the dissolution of the relationship has not been officially legalized, and at this time the woman gives birth to a child from another man;
  • when the spouses are divorced, the woman becomes pregnant by another man, but the child is born in the early stages.

These are the most typical cases when, in fact, the legal father is not biological and then he has every right to renounce parental rights.

In practice, situations may differ, sometimes a woman deliberately confuses her husband and proves the opposite, sometimes a man, when registering a relationship, initially knows that the woman is pregnant from someone else, but then decides to abandon the child. Any of these issues can only be resolved by judicial procedure(Article 52 of the RF IC).

Is it possible to challenge

If there are doubts that a child born in a marriage, or no later than 300 days after its dissolution, is not yours, you, of course, can challenge this and, as we have already said, the issue is resolved only through a district court.

You need to submit an application with a request to challenge the fact of paternity; the correctness of filling out such claims is given in Article 131 of the Civil Procedure Code.

In addition to the statement, you support Required documents, usually this is a passport, marriage certificate and birth certificate, and you also need to pay a state tax (300 rubles) for processing the case.

If a man previously knew that the woman was not pregnant from him and did not hide it, then such requests are rejected. The spouse will continue to be considered the father of the child.

LEGAL SCIENCES

PRESUMPTION OF PATERNITY: PROBLEM STATEMENT

Cherepanin E.Yu.

Evgeniy Yuryevich Cherepanin - lecturer, Department of Civil Law, Ural Branch of the Russian State University of Justice, Chelyabinsk

Abstract: the article discusses some problems of establishing the origin of a child, applying and refuting the presumption of paternity. Key words: marriage, Family code, motherhood, paternity, presumption, presumption of paternity, establishment of paternity.

The legal meaning of the presumption of paternity has not changed since Roman law and lies in the fact that with its help, spouses are freed from proving the origin of a child born during marriage.

According to Part 2 of Art. 48 of the RF IC, if a child was born from persons married to each other, and also within three hundred days from the moment of divorce, recognition of it as invalid or from the moment of death of the spouse of the child’s mother, the father of the child is recognized as the spouse (former spouse) of the mother, unless proven other (Article 52 of the RF IC).

The paternity of the spouse of the child's mother is by default certified by the record of their marriage. In addition, according to Article 48 of the Federal Law “On Acts of Civil Status”, the basis for state registration of establishing paternity is:

A joint statement to establish the paternity of the father and mother of the child who were not married at the time of the child’s birth;

Application to establish paternity of the child’s father who is not married to the child’s mother at the time of the child’s birth;

A court decision to establish paternity or to establish the fact of recognition of paternity, which has entered into legal force.

In the absence of these circumstances, paternity is established and accordingly contested in court.

Before moving on to consideration of the application of the presumption of paternity and its refutation, the following should be noted. As a rule, in the scientific literature the presumption of paternity is characterized positively. Its role in simplifying the procedure for registering the birth of a child and in protecting his interests is noted. However, there are scientific positions that condemn the use of the presumption of paternity. They are mainly dictated by the purpose of protecting the interests of the mother’s spouse, who is not the “biological” father of her child, for example, when the child is obviously conceived as a result of adultery or during the actual separation of persons whose marriage has not been officially terminated. To refer to such incidents that require refutation of the presumption in judicial proceedings, it is proposed to use the term “forced legal paternity”.

Russian legislation does not contain a rule that allows the child’s mother, who is married, or both spouses, already during the state registration of birth, to declare that the mother’s spouse is not the father of the child, and then another person who declares this is recognized as the father. In such a current situation in Russia, it is only possible to register a spouse as the father of a child or ex-spouse mother of the newborn, and in the future, challenging in court the entry about the father in the birth register in accordance with Art. 52 of the RF IC and the norms of the Civil Procedure Code of the Russian Federation, even if the spouse (former spouse) does not object, but the actual spouse and biological father of the child wishes to establish

paternity in relation to oneself. This state of affairs seems cumbersome, vulnerable, and is not at all aimed at protecting the rights and legitimate interests of the child and the mother in labor. In this regard, the authors propose to use the experience of a number of foreign countries (Belarus, Ukraine, Tajikistan), whose family legislation provides for this possibility.

For example, in Art. 51 of the Code of the Republic of Belarus on Marriage and Family states that the origin of a child from a father who is not married to the child’s mother, if the child’s mother is married to another person, is established on the basis of a joint application of the father and mother of the child for registration of paternity, an application of the mother , confirming that her husband is not the father of the child, and a statement from the husband of the child’s mother confirming that he is not the father of the child, submitted to the civil registry authorities, or a court decision establishing paternity.

An additional condition to this rule contains Part 3 of Art. 122 Family Code of Ukraine: spouses, as well as a woman and a man whose marriage has been terminated, in the event of the birth of a child before the expiration of ten months after the termination of their marriage, have the right to submit to the state civil registration authority a general application for non-recognition of the man (former spouse) father of the child. Such a requirement can be satisfied only if another person and the child’s mother submit an application for recognition of paternity.

This point of view has its place, but simplifying the procedure for “challenging paternity” can negatively affect the interests of the child. No one takes into account or explores the interests of the child. Lack of judicial control can lead to violations of children's rights. Currently, the so-called fictitious establishment of paternity is often used. In addition, there are cases when an application to establish paternity is submitted by a person who knows that he is not the biological father, and then later goes to court and challenges paternity. It is not always possible to confirm that the plaintiff actually knew that he was not the father.

The question of voluntary recognition of paternity is also interesting. Voluntary recognition of paternity does not always find support among scientists. Some authors propose to establish a ban on voluntarily recognizing oneself as the father of a person who knows that he is not the biological father of the child. Because only the institution of adoption is intended for this. Thus, there will be legal grounds to invalidate acts of voluntary establishment of paternity if it is proven that they were committed by persons evading the adoption procedure. We do not support this point of view, since adoption is permissible either in the absence of parents or if the parents are deprived of parental rights.

In addition to the possible simplification of the procedure for establishing paternity, there is an opinion in science that the presumption of paternity contradicts the child’s right to know his parents and should be contestable in all cases, people are imperfect, they tend to make mistakes. The author asks the question: Why is such a presumption of paternity needed, which does not give a real idea of ​​​​the origin of the child? Currently, there is no clear answer to this question in the science of family law. The right of a child to know his biological parents cannot be fully realized only “in the event that the child was found, abandoned, or in the event of voluntary establishment of paternity by a person who is not the child’s biological father, and in other cases.” It seems to us, for example, when establishing the obligation of the registry office to notify the relevant person about the fact of indicating him as the father of the child, or in the case of enshrining in the legislation the need to obtain the consent of both married spouses, when establishing paternity, this right will be realized to a greater extent .

Bibliography

1. Krasnova T.V., Alekseeva E.V. Fathers and children: problems of acquisition of parental rights by men (on the example of Russian legislation) // Bulletin of Perm University. Legal sciences, 2016. No. 4. pp. 426-439.

2. Rabetz A.M. Presumption of paternity of the husband of the child’s mother in family law Russian Federation and in the post-Soviet space // Family and housing law, 2016. No. 2. P. 20-23.

3. Matveeva N.A. Presumption of paternity and problems of its refutation // Family and Housing Law, 2014. No. 4. P. 39-41.

4. Krasnova T.V., Alekseeva E.V. Fathers and children: problems of acquisition of parental rights by men (on the example of Russian legislation) // Bulletin of Perm University. Legal sciences, 2016. No. 4. pp. 426-439.

5. Tarabrin A.I. Challenging paternity: legal ways to solve the problem in the Russian Federation // Family and Housing Law, 2014. No. 6. P. 33-36.

6. Article-by-article commentary to the Family Code of the Russian Federation, the Federal Law “On Guardianship and Trusteeship” and the Federal Law “On Acts of Civil Status” / ed. P.V. Krasheninnikova. M.: Statute, 2012 // SPS “ConsultantPlus”.

ON THE ISSUE OF THE RATIONAL USE OF MONEY UNDER THE SAVINGS AND MORTGAGE SYSTEM FOR PROVIDING MILITARY SERVANTS

Davtov B.R.

Davtov Boris Radikovich - Bachelor, Department of Civil Law, Perm State National Research University, Perm

Today, a mortgage is a convenient tool for purchasing real estate. Most real estate transactions occur using a mortgage, including with state support in the form of housing certificates, subsidizing loan rates, and the use of specialized programs.

Adoption Federal Law No. 117 “On the savings and mortgage system of housing for military personnel” in 2004 is a solution to the social issue of ensuring the right to housing for military personnel and members of their families.

This law regulates the legal, organizational, economic foundations of the savings-mortgage system (SMS) for housing provision for military personnel.

The right to participate in the NIS is guaranteed to military personnel, subject to passing military service within 3 years.

The conditions for lending to a military personnel differ from the conditions for providing a loan to ordinary citizens.

The interest rate on the loan is lower and amounts to 9% - 9.5% per annum. Compared to a regular lending program, where the percentage is from 9.75 to 11.5%.

When opening a specialized bank account in the name of a military personnel, the Federal State Institution "Rosvoenipoteka" credits monthly contributions, the amount of which is established in accordance with the budget of the Russian Federation for the current year. After 3 years of service, the serviceman receives a NIS Participant Certificate, which confirms his right to take advantage of a military mortgage.

Presumption of paternity (maternity)

The presumption of paternity has its roots in Roman private law, where paternal authority was established over children born into a legal Roman marriage. That is why the said presumption was formulated by Roman jurists in the form of the formula “ate rest guem nuitae demonstrant,” which means: “the father to whom the marriage indicates.” The man only had to demand marital fidelity from his wife, so that his social paternity coincided with his biological one.

IN modern world the presumption of paternity, according to which the assumption of the origin of a child from his mother’s husband is based on the fact of marriage and does not require proof, is known to the legal systems of many foreign countries: Austria, France, Canada, Switzerland, the Netherlands, Germany, Japan, etc.

According to paragraph 2 of Art. 48 of the Family Code of the Russian Federation (hereinafter referred to as the RF IC), the paternity of the spouse of the child’s mother is certified by a record of their marriage. Like any other, the presumption of paternity reflects the usual (typical) order of connection between phenomena, the experience of generations on this issue: motherhood is obvious and confirmed by ordinary medical documents, etc., paternity, even in marriage, is presumptive.

It is generally accepted that the presumption of paternity is established in order to protect the interests of the child and his mother. It is enough to confirm the fact of marriage between the child’s parents by submitting the relevant document to the registry office, and paternity is established. Thus, the presumption of paternity is based on the fact that the connection between existing and presumed facts cannot be proven due to the typical nature of the situation.

It should be noted that according to the RF IC, a necessary and sufficient fact giving rise to the presumption of paternity is the fact of the marriage status of the child’s parents at the time of his birth: “If the child was born from persons married to each other... the father of the child the spouse is recognized ... to the mother, unless otherwise proven" (clause 2 of article 48 of the RF IC). However, the law does not attach legal significance to the moment of conception of a child. The presumption of paternity operates by virtue of the very fact of the birth of a child to married persons. Therefore, if, for example, a child is born the next day after marriage, then the mother’s husband will be recognized as his father based on the presumption of paternity.

Meanwhile, according to the classical presumption of paternity in marriage, most clearly formulated in the Napoleonic Code of 1804 and reproduced in Russian imperial legislation: “If conception (emphasis added) and birth occurred in marriage, then it is assumed that the father of the child is the husband his mother."

In contrast to the current Russian legislation, in the modern legislation of a number of states, the effect of the presumption of paternity is determined by the moment of conception of the child.

Thus, in Hungary, the father of a child is considered to be the person with whom the child’s mother was married from the moment the child was conceived until his birth or for a certain period of time from the moment of conception. According to Italian law, the mother's husband is the father of a child conceived in marriage. A child born no earlier than 180 days from the date of registration of marriage is recognized as conceived in marriage. A child born after 300 days from the date of a court decision to terminate the spouses’ cohabitation or from the moment the spouses separated by mutual consent is not considered to be conceived in marriage. In France, children born before the 180th day after marriage are also presumed to have been conceived before marriage (Article 314 of the Federal Civil Code).

The moment of conception, as the main element of the presumption of paternity, has legal significance in those states where a type of presumption of paternity operates - the presumption of legitimacy. Thus, according to the Civil Code of Japan, a child whose parents were in a registered marriage at the time of conception is legitimate. The second indispensable condition for legitimacy is the birth of a child at least 200 days after the marriage or 300 days after the dissolution or annulment (invalidity) of the marriage (clause 2 of Article 772 of the Civil Code of Japan). Thus, a child conceived during marriage but born after the divorce is considered legitimate, while a child born within marriage but conceived before its conclusion is not. In other words, the presumption applies only if the child’s parents were in a registered marriage at the time of the child’s conception.

Having asked the question of how much giving legal significance to the moment of conception of a child corresponds to the interests of the child himself and his mother, we share the point of view of N.F. Kachur. Examining the effect of the presumption in the case where the child was conceived before and born after the marriage was registered, she notes that “if the spouses themselves do not want to question the paternal origin of the child, then there is no reason to refuse its application in in this case. Therefore, when registering the birth of a child, the law does not require establishing the moment of its conception; it is enough that the child is born after the marriage is registered.”

The presumption of paternity operates within the time limits determined by law when it comes to a child born within a certain period of time that has passed since the divorce of his parents, the recognition of the marriage between them as invalid, or the death of the mother’s spouse. In the Family Code of the Russian Federation, the period of validity of the presumption of paternity at the birth of a child “outside the state of marriage” is defined within 300 days (Clause 2 of Article 48 of the RF IC). Three hundred days is a medical criterion that determines the maximum probable period from the moment of conception to the moment of delivery, i.e. before the baby is born. In contrast, in the Code of Marriage and Family of the RSFSR, this period was defined as ten months. The Russian legislator’s refusal to calculate the validity period of the presumption of paternity in months and the transition to calculating it in days is due to the positive legislative practice of foreign countries, in many of which - in Poland, Italy, France (Article 311 of the Federal Civil Code), Switzerland (Article 252 of the ShGK) and Germany (§1593 GGU) - it is equal to 300 days.

The longest period during which the presumption of paternity is valid is established by Dutch law and is 306 days.

At the same time, in practice there may be situations in which the application of the presumption of paternity is very problematic. Thus, if a marriage is dissolved due to the husband being declared missing, this presumption is not valid even if a child is born within 300 days after the divorce. The same applies to a situation where the husband could not be the father of a child born to his wife due to objective circumstances, for example, in the case of a long separation due to the husband being on a business trip abroad.

In the practice of civil registry offices, a number of questions arise related to the application, or more precisely, whether it is possible not to apply the presumption of paternity in certain cases. For example, does the mother of a child who is married have the right not to indicate her husband as the father of the child, does she have the right, together with the actual father of the child with whom she is not married, to submit an application to the registry office to establish his paternity in relation to the child born to her? Can the registry office register the birth of a child and establish paternity in cases where the child is born to a married woman, but not from her husband, but from another man?

It is known that the presumption of paternity is rebuttable: the father of the child is the spouse (former spouse) of the mother, unless otherwise proven (clause 2 of Article 48 of the RF IC). However, it is impossible to challenge it (or deviate from it) at the stage of recording paternity. In accordance with the presumption, the husband of the child’s mother will be indicated as the father of the child in the registration book and in the child’s birth certificate, even if he disagrees with such an entry at the time it was made, as well as the disagreement of the mother or actual father of the child.

At the same time, the attitude towards the possibility of derogating from the presumption of paternity in the Soviet and post-Soviet period was subject to revision more than once: half a century ago, the child’s mother, who was married, was given the right to challenge the presumption of paternity out of court by submitting to the registry office a statement that her The husband is not the father of the child.

More than a quarter of a century ago, the issue was resolved in exactly the opposite way: “The mother is not given the right to choose the father of the child when registering his birth. The father of the child of a married woman is considered to be the spouse, in whose name the child should be registered. The correctness of this regulatory framework has been verified life experience“That’s why the legislator in such a categorical form obliges the registry office to register married spouses as the parents of the child.”

In the original version of Art. 48 of the RF IC allowed the possibility of derogating from the presumption of paternity at the stage of recording paternity. To do this, the mother of the child was given the right to submit to the registry office a statement that the father of the child is not her husband (former spouse), but another man. As a rule, in this case, two applications were submitted: a joint application from the unmarried parents of the child to recognize the illegitimate child and a statement from the husband of the child’s mother about his lack of objections in connection with the establishment of paternity of another man in relation to the child born by his wife. After this, paternity of the child was established according to the rules provided by law: either voluntarily on the basis of a joint application of the mother and the actual father of the child, or (in the absence of such an application) in court. However, this norm did not last long: by Federal Law of November 15, 1997 No. 140-FZ, it was abolished.

According to the fair remark of N.N. Tarusina, currently the presumption of paternity in marriage (Article 48 of the RF IC) at the stage of making a paternity record does not provide any choice to either the mother or the actual father of the child - each of them only has the right to challenge this record in court and establish paternity. At the same time, the novella of paragraph 3 of Art. 48 of the RF IC, which allowed the mother to declare that the father of the child is not her husband, and thereby by her own expression of will, and not by a court decision, to refute the presumption, has been cancelled, i.e. the classic technology of challenging a legal assumption through litigation has been restored.

Thus, the entry about the child’s father made by the registry office is evidence of the child’s origin from of this person and can be refuted (challenged) only in court (Article 52 of the RF IC). Until the court decision, which satisfied the claim to challenge paternity, enters into legal force, the paternity of the spouse of the child’s mother is valid.

It seems that the provisions on the presumption of paternity need to be adjusted taking into account modern realities. In fact, today there is a conflict in the application of norms that establish the presumption of paternity of the spouse of the child’s mother, on the one hand, and granting the right to establish paternity voluntarily at the birth of a child among persons who are not married to each other, on the other hand. In practice, this conflict is usually resolved in favor of provisions establishing the presumption of paternity.

From the position of ensuring the rights and interests of the child and his parents, a logical question arises: why does the legislator clearly give preference to social paternity based on marriage over biological paternity based on consanguinity? In whose interests is this priority assigned?

The use of the presumption of paternity, aimed at protecting the child’s right to have a father (primarily social!), may violate the rights of both the legal and actual father of the child. A married woman has the right (and obligation) to, in any case, indicate her husband as the father of the newborn when registering a child born to her. Only a husband can be recorded as the father of a child born to his wife. And only after making a record of the child’s birth at the registry office and receiving a birth certificate, it is possible to go to court and challenge the presumption of paternity, on the basis of which this record was made.

In this regard, a case from the practice of the European Court of Human Rights seems interesting.

A married Dutch citizen gave birth to a child whose father was not her husband, but another man. By this time, she had not only not lived with her husband for several years and had no contact with him, but did not even know about his whereabouts. After the birth of the child, the marriage was dissolved in court, and the child’s mother, together with his actual father, applied to the state authorities with a request to register the latter as the child’s father, which they were refused. According to Dutch law, when a child is born in a registered marriage, recognition of another person as the father is only possible if the husband denies paternity or if the wife challenges paternity, but in the latter case the child must be born within 306 days after the divorce.

The Government of the Netherlands drew the attention of the European Court to the fact that the applicants (the child’s parents) had the legal opportunity to formalize the relationship between father and son using the adoption procedure after the marriage between the parents.

The court did not agree with this approach and came to the conclusion that the decision in which the marriage of the child’s father to his mother is the only opportunity to establish legal ties with the son, if there are relations between these persons that are equivalent family life, cannot be considered as consistent with the concept of “respect” for family life. According to the Court, “respect” for family life requires that biological and social realities prevail over a legal presumption that defies both the established facts and the wishes of all concerned.

We believe that the current solution to the issue by Russian legislation is not in the interests of the child, not in the interests of his biological parents, and not even in the interests of the state and society. Let's look at the situation using an example. A child is born to a married woman whose husband, due to objective circumstances (for example, due to a reproductive disease leading to infertility), is not his father. However, he will be recorded as the child's father. At the same time, in order to establish a family relationship with the child, the actual father must apply to the court to challenge the paternity of the spouse of the child’s mother, and only after the court decision has entered into force, by which the claim is satisfied, it is possible to exclude information about the father from the child’s birth certificate, establishing paternity on the basis of a joint statement from the actual father and mother of the child and entering information about the father into the child’s birth certificate.

Based modern ideas about the relationship between the biological and the social, in paternity or maternity the social must be a continuation of the biological and coincide in one person. An example of social parenthood in its pure form is parental status obtained as a result of adoption.

Meanwhile, due to the development of assisted reproductive technologies (artificial conception of a child using donor biological material, surrogacy), separation of biological and social paternity and maternity is possible.

A number of legal difficulties in connection with valid presumption paternity may arise in practice in the event of the birth of a child as a result of the use of assisted reproductive technologies. The Family Code of the Russian Federation provides for establishing the origin of a child born as a result of the use of reproductive technologies such as artificial insemination, embryo implantation and surrogacy (clause 4 of article 51). In accordance with the Order of the Ministry of Health of the Russian Federation dated February 26, 2003 No. 67 “On the use of assisted reproductive technologies (ART) in the treatment of female and male infertility,” their use is possible only for medical reasons for the treatment of infertility, both at the request of the spouses and lonely woman.

According to paragraph 4 of Art. 51 of the RF IC, persons who are married to each other and have given their consent in writing to the implantation of an embryo into another woman for the purpose of bearing it, can be registered as the parents of a child only with the consent of the woman who gave birth to the child (surrogate mother). If the consent of the surrogate mother is not obtained, then when registering the birth of the child in the registry office in the birth certificate, she is written down by his mother on the basis of a document issued by the medical organization in which the birth took place, as the woman who gave birth to him. As for the father of the child, then if surrogate mother is married (and this is, as a rule, one of the requirements for a woman who wants to become a surrogate mother), then the presumption of paternity comes into force, by virtue of which her husband will be recorded as the father of the child born by the surrogate mother! In this case, the interests of the surrogate mother’s husband suffer.

It should also be noted that not a single regulatory legal act provides for the need to obtain the consent of the spouse of a woman who has decided to bear a child for an infertile couple, i.e. surrogate mother. The consent of the spouse is not required, despite the possible unfavorable consequences for him of the pregnancy and birth by his wife of a genetically alien child, the father of which he can be recognized on the basis of the presumption of paternity.

Good afternoon!

In various areas of Russian legislation, the term “presumption” is quite widely used, which means nothing more than an assumption that is true until the contrary is proven in court. In family law there is also the concept "presumption of paternity." What it is, and what features you should know about, we’ll talk about today.

300 days after marriage

According to Russian law, the presumption of paternity is a legal statement according to which the legal (official) father of a child born in an official marriage or within the next three hundred days after its termination, annulment or death of the husband is the legal spouse or former legal spouse of the mother .

This rule applies only if the contrary statement is not proven in court. It should be noted that if the child’s mother refuses to conduct a genetic examination (DNA test) to refute paternity, it will be almost impossible to prove the man’s non-involvement in the birth of the baby.

This legal norm is regulated by paragraph 2 of Article 48 of the RF IC and Article 17 of the Federal Law “On Acts of Civil Status”.

In other words, in the civil registry office the procedure for establishing the paternity of a newborn occurs “by default” upon presentation of:

  • marriage certificates;
  • divorce document or death certificate of a spouse (if the validity of the document does not exceed three hundred days).

A paternity document may be needed for:

  • registration of child benefits;
  • legal grounds for collecting monthly maintenance from the child’s father;
  • obtaining the right to inherit the father's property by the child;
  • registration of a pension associated with the loss of a breadwinner.

In addition, a certificate of paternity may be useful to the father himself if the child’s mother prevents the baby from communicating with the second parent.

Legal consequences

In accordance with the current this moment By law, a person legally established as the father of a child bears a number of obligations to him, including obligations for:

  • education - pay due attention, assistance in development, education, treatment;
  • maintenance - material participation, including in a forced manner through the assignment of alimony;
  • preserving the legitimate interests and rights of the child, such as the right to receive pension payments for loss of a breadwinner, inheritance law and others.

Thus, the establishment of paternity entails the fulfillment of a number of obligations in relation to the minor, including the payment of alimony, if such is assigned in court.

Although the presumption of paternity was developed to improve the situation of mother and child, controversial legal situations sometimes arise, including when:

  • a woman gives birth to a child in marriage from another man;
  • a woman gives birth to a child from another man after the dissolution of her first marriage, but within three hundred days.

The peculiarity of these situations is the fact that in each of them the mother’s first husband will be recognized as the legal father of the child, even if both the legal and biological father claim the opposite.

The consequences of forced recognition of paternity can be avoided or annulled only in court by filing a statement of claim to challenge the fact of paternity (Article 52 of the RF IC).

It is necessary to understand that filing a claim to disprove paternity without any evidence will not work - it will simply not be accepted. Such evidence includes testimony of third parties (witnesses), results of genetic research (DNA examination), medical certificates and any other documents confirming the absence of family ties between parent and child. Interestingly, the courts do not accept cases in which artificial insemination appears as a method of conceiving a child.

It should be noted that not only the legal parents of the child have the opportunity to file an application to challenge paternity, but also:

  • the child's biological father;
  • the child himself, provided that at the time of filing the application he has already reached the age of majority;
  • guardians of incapacitated parents;
  • guardians of the child.

Thus, to file a claim to challenge paternity, you will need the following set of documents:

  • statement of claim;
  • payment document confirming payment of the state duty;
  • marriage certificate;
  • documentary evidence of the lack of relationship between the child and his legal father.

In this case, the procedure for challenging the presumption of paternity is as follows:

  • determination of the initiator of the claim:
    • legal father of the child - the defendant in the claim will be the biological father of the child or his mother;
    • mother of the child - the defendant in the claim will be the legal father of the child;
    • biological father of the child – the defendant in the claim will be the legal father of the child.
  • drawing up a statement of claim in accordance with Article 131 of the Code of Civil Procedure of the Russian Federation;
  • payment of state duty (300 rubles);
  • filing a claim for consideration in the district (city) court at the place of residence of the defendant;
  • contacting the civil registry office at the place of registration of the child with a copy of the court decision in order to cancel the entry about the father in the birth certificate.

It should be noted that if a person falls under the presumption of paternity and is recognized by default as the child’s parent, then his responsibilities include financial support for the child until the contrary is proven in court. If the legal father evades the voluntary fulfillment of these obligations, the child’s mother has the right to demand payment of alimony even if the father is not his own.

If the stepparent challenges paternity in court, then the payment of alimony will officially stop only from the moment the court decision enters into force.

In this case, funds paid as child support before the procedure for disproving paternity are not subject to return.

In a civil marriage

Establish paternity in civil marriage It is not difficult if the father voluntarily recognizes the child.

To do this, after the birth of the newborn, you need to visit the registry office, having with you:

  • identification documents;
  • child's birth certificate (yes);
  • payment document confirming payment of the state duty;
  • certificate from the maternity hospital.

An application should be submitted to the registry office in form 12. Joint submission of such an application means the unconditional consent of both parents to assign the child the father’s surname and the emergence of all the responsibilities arising from this.

After all documents have been submitted and paternity has been properly formalized, the registry office staff will record the father’s details in the birth record book.

If the common-law husband refuses to recognize paternity, the child’s mother has the right to bring him to trial and, therefore, to pay monthly allowance for child support.

If the initiator of establishing paternity is the child’s father, and the mother died or was deprived of parental rights, then the applicant should contact the civil registry office with the following package of documents:

  • general passport;
  • payment document confirming payment of the state duty;
  • child's birth certificate;
  • permission from guardianship authorities;
  • documentary evidence of the mother's incapacity or death.

In conclusion, I would like to note once again that the presumption of paternity implies legal confirmation of the paternity of the spouse (former spouse) of the mother if the child was born in marriage or within three hundred days after the divorce, annulment or death of the spouse. In this case, it is possible to achieve a refutation of paternity only in court by filing an appropriate statement of claim and providing indisputable confirmation of the lack of relationship between the child and the parent: testimony of witnesses, results of a genetic examination, medical certificates and other documents. Accordingly, if the child’s mother refuses to conduct a DNA test to establish paternity, it will be possible to challenge it only if there is other irrefutable evidence.

About the problems of establishing paternity in the video: