With the growing popularity of civil marriage, certain troubles are increasingly occurring. Since children are born in such marriages, it often becomes difficult to establish paternity. Particular difficulties arise when the future father dies. A young mother sometimes needs to prove the relationship of the baby with a deceased person. For example, a girl wants to apply for child benefits for the loss of a breadwinner or claims the inheritance of her civil husband.
Ways to establish paternity
There are three ways to establish kinship when the spouses are not married. They differ in the conditions and sequence of the procedure. You can establish paternity in the following ways:
- voluntary recognition;
- by judicial decision;
- posthumous establishment of paternity through the courts.
Voluntary recognition of kinship
Set in the case of unregistered relations of common-law spouses. Together they submit an application to the registry office for recognition of paternity (motherhood is automatically recorded). If the baby’s mother either died, or was deprived of parental rights after the trial, or she was declared legally incapable by the conclusion of experts, then the father can only apply with the consent of the relevant authorities. It is important to take permission from the guardianship authorities.
Sometimes, after the birth of the baby, due to some circumstances, the parents cannot file an application together. Then it is provided for submission to the registry office before the birth of the child.
When a child reaches adulthood, the process of establishing paternity is carried out only with the permission of the first.
Judicial determination of paternity
Often there are situations that the alleged father does not want to recognize his minor child. Here, the mother can achieve justice only in court.
The Family Code was amended in March 1996. Therefore, if the child was born after the introduction of changes, the establishment of paternity is regulated by article 49 of the RF IC. The court accepts and considers all the evidence presented, which confirms the birth of the baby from the person indicated in the application. All possible evidence is listed in article 55 of the RF IC.
For older children, the procedure is carried out on other aspects. In this case, the court will be guided by Article 48 of the RF IC when making its decision. Here, the plaintiff proves the general management of the household, as well as the cohabitation of common-law spouses at the time of pregnancy, followed by the birth of a joint child. In the establishment of paternity, the statute of limitations is not provided for by law . You can go to court at any time after the baby is born.
Establishment of paternity after death
The posthumous establishment of paternity is carried out only in court. The fact of recognition of a born baby as a deceased person during life is not important here. Also, the establishment of paternity after the death of the father begins only after providing evidence that certifies the fact of birth from a deceased person. This case applies only to children born before March 1996.
The court parses even older disputes. If the child was born before October 1, 1968, the court recognizes the paternity of the deceased person if there is evidence that the minor was still completely dependent on the alleged father until his death.
Reasons for establishing kinship
There are only two reasons that entail the posthumous establishment of paternity.
- When the baby's parents were not officially married, and at the time of death, the alleged father did not recognize his own child.
- If a man admitted paternity to death, but at the time of the birth of the baby, the spouses already or have not yet been officially married.
Filing a lawsuit
In addition to the mother, some other persons may submit the required statement of claim to court in order to establish kinship. They have the right to apply to court:
- guardian officially confirmed when the child has not reached the age of majority;
- if the baby is dependent on someone, then the person who contains the minor is suing;
- upon reaching the age of 18, the child may file a lawsuit in court.
Evidence that the court takes into account when making its decision
Article 55 of the RF IC specifies all admissible evidence that the plaintiff may submit to the court when establishing paternity. These include:
- Letters written by the alleged father to both the mother of the child and the minor.
- Written statements from a deceased person that indirectly prove paternity. These can be entries in circles or sections that the alleged father carried out.
- Witness's testimonies. The court will hear the opinions of neighbors and relatives of the mother, who will talk about the relationship of the spouses. Also here, if possible, government bodies will be involved who can provide important evidence in this matter.
- Medical evidence. An important aspect in the posthumous establishment of paternity is the results of DNA analysis. Of course, this procedure is possible only if the deceased person has close relatives, for example, parents, sisters or brothers.
Paternity DNA Testing
How is this done? The posthumous establishment of paternity is often carried out only after the test. To date, such cases are quite popular and more effective. A paternity test is carried out only after a court decision and in a specific clinic, which will be indicated. DNA analysis is carried out in strict compliance with all sanitary and legal standards. In connection with the death of his father, experts use biomaterials of immediate relatives. Parents or siblings can act as a source for collecting biomaterial for DNA testing for paternity. Also, experts can take advantage of blood tests of the deceased person, which he donated during his life.
The paternity test gives a probability of 99%, which will significantly increase the chances of a positive outcome for the plaintiff. After passing this procedure, the results are transferred to the court, and a new date is set for the consideration of the case. If the decision is positive, the mother or other representative of the minor child writes a statement to the registry office, enclosing copies of all necessary documents. These include a birth certificate and a court decision. On the basis of a judicial opinion, after a few days, the mother receives a new paternity certificate. With this document, a woman can apply for the payment of benefits for the loss of a breadwinner, as well as an inheritance.
Conditions for applying for recognition of paternity of a deceased person
A statement of the fact of paternity, filed in court, must be prepared in accordance with all legislative norms. If the mother or guardian of the minor does not know about the whole procedure, it is better to consult a lawyer or lawyer for advice. Because, in addition to the statement, it is necessary to attach copies of some documents. With proper filing, the court will soon take into account your situation and begin to work. In the application, the mother must include all the details of the deceased alleged father and the joint minor child.
List of copies of documents required for consideration in court:
- Death certificate of the alleged father.
- Birth certificate of a joint minor child.
- Certificate of cohabitation with the place of residence (if any).
- Receipt of payment of the required state duty.
- Evidence of paternity of the deceased person (photographs, letters, etc.).
Objections to a declaration of kinship of a deceased person
It sometimes happens that a mother’s application for paternity of a deceased civil spouse is considered more seriously in connection with certain specific circumstances. They may be counter-objections, often statements of claim. Such a lawsuit may be filed by close relatives or, even worse, his official wife.
In the event that the deceased alleged father was not officially married to another woman, the fact of kinship is confirmed by evidence in the form of photographs or letters, as well as with the help of witnesses. If the man was officially married, then it is much more difficult to prove justice. Despite all the evidence and evidence, the court will require a DNA test. According to experts in the legal field of activity, if a counterclaim arises on the submitted application, the court, when making a decision, is guided only by the results of the analysis.
Summarize. Establishing paternity after the death of a father is a rather troublesome business, and sometimes requires large financial expenses. Therefore, the establishment of kinship for an unregistered couple should be treated more responsibly. Because jurisprudence notes moments when the establishment through the court has failed. It is not easy for a young mother to survive the situation alone.