✅ Determination of the origin of the child whose parents are married to each other

Determination of the origin of the child from the mother and father who are married to each other in Ukraine

Scriabin Alexey Nikolaevich

family lawyer

Our family lawyers are often asked the following questions: On the basis of which document is the child's descent from married persons determined? How to determine the origin of the child, whose parents are married to each other? Who has the right to register a child in the event of the death of his parents?

On our website advokat-skriabin.com you can familiarize yourself with the topic: “Determining the origin of a child whose parents are married to each other” and, if you have any questions, seek legal advice from our family lawyers and lawyers who will provide you with legal services for business.

The origin of the child from the mother and father who are married to each other is as follows:

1. A child conceived and (or) born in marriage comes from the spouses. The descent of the child from the spouses is determined on the basis of the marriage certificate and the document of the health care institution about the birth of the child by the wife.
2. A child born before the expiration of ten months after the termination of the marriage or its annulment comes from the spouses.
3. 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 a joint application to the state registration authority for civil status acts not to recognize the spouse (former spouse) as the father of the child. Such a requirement can be satisfied only if another person and the mother of the child submits an application for acknowledgment of paternity.

Origin of the child born after the termination of marriage in Ukraine

If the child was born before the expiration of ten months from the date of the termination of the marriage due to the death of the husband, the child’s descent from the father can be determined by a joint statement of the mother and the man who considers himself to be the father.

When a child is believed to be descended from a spouse in Ukraine

The UK regulates the relationship to determine the origin of the child from the mother and father, who are married to each other. Moreover, it should be noted that the Law of Ukraine dated December 22, 2006 p. No. 524-V “On Amendments to the Family and Civil Codes of Ukraine” in Art. 122 of the Code in part 2, the words “except for the case provided for in article 124 of this Code” are excluded, and parts are set out in a new edition. The introduction of certain changes was due to the need to improve the institution of the presumption of paternity and the need to provide additional guarantees to protect the subjects of parental relationships.

The Family Code of Ukraine regulates the origin of a child, conceived and (or) born in marriage from parents. The law establishes the provision that such a child comes from spouses, that is, from a woman and a man who are married to each other. In this regard, a child is considered to be descended from a spouse if she:

• conceived by spouses and born during marriage;
• conceived by a woman and a man who were not married at the time of conception, but at the time of the birth of the child, the marriage between them was registered (even if the child was born on the day of registration of the marriage, but before its registration).

The legislator points out that the origin of the child from the spouses is determined on the basis of the marriage certificate and the document of the health care institution on the birth of the child by the wife, that is, it determines the procedure for legal registration of paternity. This procedure is disclosed in more detail in the commentary to Art. 121 SK.

Presumption of paternity in Ukraine

In defense of the rights and interests of the child protected by law, the provisions of the Code become, according to which a child born before the expiration of ten months after the termination of marriage or its invalidation, comes from the spouses. Thus, in part 2 of Article 121 of the UK, the third basis is fixed, which determines the origin of the child from the mother and father, who are married to each other.

The above three cases are nothing more than the establishment of the principle of the presumption of paternity in the law.

Such a presumption proceeds from the fact that the father of a child born in marriage or before the expiration of 10 months after its dissolution is a person who is (was) with the child’s mother in a registered marriage. Thus, the presumption of paternity covers children who:

• conceived and born in marriage;
• who are conceived in marriage, but born in wedlock;
• who are conceived in marriage, but born before the expiration of ten months after the termination of the marriage or its invalidation.

Moreover, their rights are protected equally, regardless of when they were born. In this regard, the presumption of paternity does not apply to children, although they come from spouses, but were born before marriage, and to children born after 10 months after the termination of the marriage or its invalidation. The origin of such children is determined in accordance with Art. 126 SK and requires, in contrast to the operation of the principle of the presumption of paternity, the joint expression of the will of the mother and father.

Also, the presumption of paternity cannot fully operate in the event of the establishment of a separate residence regime for spouses, provided for in Articles 119-120 of the UK. So, if a separate residence regime is established, a child born by a wife after ten months will not be considered as descended from her husband.

The theory of family law also speaks of the presumption of motherhood, according to which the wife gave birth to a child and exactly the child she took from the hospital.

In the event of the presumption of paternity, the wife’s husband is recorded as the child’s father, regardless of whether he wishes it or not. Although the law does not deprive him of the right to challenge his paternity in court (Article 136 SK).

The purpose of the presumption of paternity is not only to popularize marriage as the main instrument for protecting the rights of spouses, but also to protect the interests of the child who has the right to a father, regardless of the circumstances of his conception and birth, as well as regardless of the validity of the concluded marriage. An additional guarantee of the protection of the father’s rights is also the limitation of the wife’s right to object to the registration of her husband as the child’s father.

Special attention is required by the provision of the law, according to which a child born before the expiration of ten months after the termination of marriage or its invalidation, comes from the spouses. The legislator proceeds from the assumption that the conception of a child could occur during marriage, and the birth – after its dissolution. In this case, the conclusions of medicine on the maximum possible duration of pregnancy were taken into account and it was established that from the moment of registration of the marriage, the presumption of paternity is valid for 10 months from the date of termination of the marriage or its invalidation.

On the termination of a marriage, one should proceed from the fact that it can be terminated both as a result of the death of the father (declaring him deceased), and as a result of dissolution.

Recognition of a marriage as invalid can occur by canceling the marriage record by the state registration authority (part 4 of article 39 of the UK), and by a court decision, and in accordance with the meaning of art. 44 SK such a marriage is invalid from the moment of its registration. However, by virtue of Art. 47 of the IC, according to which the invalidity of a marriage does not affect the scope of the mutual rights and obligations of the parents and the child born in this marriage, the presumption of paternity extends for 10 months from the date of entry into force of the procedural decision on the invalidity of the marriage.

Limitation of the validity of the presumption of paternity in Ukraine

The UK provides for the institution of limiting the validity of the presumption of paternity, making it possible for the father to record a child born before the expiration of ten months after the termination of their marriage of another man. This legal norm provides that 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 a joint application for non-recognition of the husband (former husband) the father of the child. Such a requirement can be satisfied only if another person and the mother of the child submits an application for acknowledgment of paternity.

The application of this legal norm is possible if there is a legal structure, that is, a set of legal facts:

• the child was born out of wedlock, but before the expiration of 10 months from the date of its termination;
• spouses or ex-spouses submit a joint application to the state registration authority for acts of civil status not to recognize the spouse (ex-spouse) as the father of the child;
• the other person and the mother of the child apply for the acknowledgment of paternity.

The introduction of this legal norm simultaneously protects both the interests of the child, who will be considered born in marriage, and the interests of his parents and ex-husband, who is not the biological father of the child. Also, such a rule will allow avoiding in the future a legal dispute on paternity between the biological father of the child and the person who is recorded by the father, which, in turn, will relieve the courts from such litigation. However, without the will of all participants in such a process, the onset of the consequences provided for by the commented norm is impossible.

It should be noted that this legal norm was introduced by the Law of Ukraine dated December 22, 2006 No. 524-V “On Amendments to the Family and Civil Codes of Ukraine”. In the previous version of the Code, which was in force until January 15, 2007, the wife and husband have the right to submit a joint statement to the state civil registration authority not to recognize the husband as the father of the child.

In this case, the origin of the child was determined in accordance with Part 1 of Art. 135 SK, that is, at the request of the mother. A person who considered himself the father of a child could prove his paternity defiantly in court (Article 129 of the UK). In our opinion, the current version of the commented article is fairer and more reasonable.

Problematic issues of the origin of the child from the parents in Ukraine

In the event that the child was born before the expiration of ten months from the date of the termination of the marriage due to the death of the husband, the child’s descent from the father can be determined by a joint application of the mother and the man who considers himself the father. The introduction of this rule caused a flurry of criticism from the relatives of the deceased, primarily the grandfather and the woman, who in this case lose their legal connection with potential grandchildren.

However, the child himself wins from this norm, he will have a living father. Although the norm is quite controversial, since it can affect the deprivation of the child’s right to inherit from the deceased spouse of the child’s mother. Moreover, the UK does not give the right to the heirs of the husband who has died to challenge the paternity of the one who will be recorded as the father, in contrast to the granting of the heirs the right to challenge the paternity after the death of the person recorded as the father of the child.

Family attorney for the descent of a child whose parents are married to each other in Ukraine

For an effective solution to the case of determining the origin of a child whose parents are married to each other, you should contact professional family lawyers.

Family lawyer:

• provide legal advice on family matters;
• will help to determine the best option for solving a family case;
• prepare all the necessary documents;
• accompanies the course of the entire trial.

Our family lawyers will do everything necessary for a quick and high-quality completion of a legal case!

Scriabin Alexey Nikolaevich

family lawyer

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