How to prove paternity outside of marriage: if the father or mother is against

Home » Paternity and Maternity » How to recognize paternity outside of marriage through the registry office

Many married couples live together for a long time without formalizing their relationship in any way. Children are often born into such families, and if everything is clear with the child’s mother, she is officially recognized as the baby’s mother upon the fact of his birth, then with the father it is not so simple. A man, in order to be considered a father by law, will need to go through the procedure of establishing paternity.

What legal provisions protect the interests of children born out of wedlock?

Legal norms, the task of which is to protect the interests of minors born from persons whose marriage is not concluded in the civil registry office in the manner prescribed by law, are contained in the Family Code of the Russian Federation, namely in the 10th and 11th chapters of this code. In particular, the 10th chapter directly indicates when and under what circumstances parents and their child have mutual rights and obligations, how the origin of a minor should be established, when paternity can be established by going to court, how the fact of paternity can be recognized with the participation of court, in what cases it is possible to challenge not only paternity, but also maternity, as well as how to register a newborn.

It is worth considering that the provisions of the Family Code on the situation of illegitimate children are not the only provisions of legislation on this issue. Thus, the Civil Code of the Russian Federation does not deprive illegitimate children of the right to receive an inheritance after the death of their father or mother.

Children born out of wedlock

A child is considered born out of wedlock if his father and mother have not consolidated their relationship in accordance with Art. 10-11 of the Family Code of the Russian Federation, which establishes that marriage is considered a union concluded in the registry office in the personal presence of the spouses. After the official registration of the relationship, the spouses are issued a document (certificate) that establishes the fact of the existence of a marriage relationship between them.

There is often an opinion that a civil marriage (cohabitation) does not entail any difficulties if such a couple has children, but this is not entirely true. Despite the fact that a child out of wedlock, as a citizen of the Russian Federation, has rights and obligations, his parents will have to go through a slightly different procedure to register birth and paternity than those who have registered a marriage in accordance with the law.

Since Part 2 of Art. 48 of the Family Code of the Russian Federation stipulates that when a child is born to persons in an official relationship, the registration of the newborn is carried out on the basis of the parents’ marriage certificate; persons who do not have such a certificate face a more complex registration procedure.

Establishing paternity of a child born out of wedlock

Paternity at the birth of a baby among persons who are not in an official relationship must be established and documented in the birth book, and the law does not exclude the possibility of voluntary establishment of paternity with the direct participation of the father in such a procedure.

It is worth noting that the grounds on which a man is officially considered a father and can be recognized as such are contained in the law “On Acts of Civil Status”. Such grounds are: a voluntary statement from the father, a statement from both parents, or a court decision. It must be borne in mind that a voluntary application from a man is accepted only if the mother for some reason (death, deprivation of parental rights, etc.) cannot participate in filing a joint application.

If paternity is not controversial, and both the father and mother agree with this fact, then the registry office accepts a statement from these persons, on the basis of which paternity at birth is established.

In case of disputes about paternity, paternity can be established in court on the basis of Art. 49 of the Family Code of the Russian Federation, and not only the mother, but also the guardian has the right to file a claim on this issue. As a rule, paternity is established in court based on the results of a DNA examination, which reveals the presence or absence of family ties. The fact of establishing paternity may also be necessary if the mother subsequently wishes to receive child support.

In addition, establishing paternity gives a minor the opportunity to receive an inheritance both by law and by will.

Who has the right to file an application or claim?

What to do if children were born out of wedlock and there is a dash in the “Paternity” column? Who has the right to claim recognition of paternity?

According to Article 48 of the Family Code, the following persons can apply for recognition of paternity:

legal representatives/parents of the child, if they jointly wish, on a voluntary basis;
biological mother or father;
the adult child himself;
guardianship authority.

You can challenge the fact of paternity at any stage of a child’s life. Depending on who wants to establish this fact, the further actions of the interested party will depend.

Voluntary confession

The most accessible way to recognize paternity is the mutual consent of the parents, which allows you to make an entry in the “Paternity” column on the birth certificate without unnecessary paperwork. Such an application can be submitted to the civil registration authority at the place of registration of one of the parents, but it is better to file it in the authority that issued the birth certificate of an illegitimate child.

Establishing paternity in the general manner at the birth of an illegitimate child is regulated in the article, and in other cases, of the Insurance Code, as well as Chapter VI of Federal Law-143 “On acts of civil...”. In order for the case and application to be considered, the parties need to collect an additional package of documents and pay a state fee of 350 rubles. (Internal Revenue Code Section 333.26).

Establishing paternity in the registry office: what is needed for registration

To consider the application, parents must submit the following documents:

identification documents of the applicants or one of the applicants;
a statement signed by both parties or one of them;
a document confirming payment of the state fee;
a certificate confirming the woman’s pregnancy or a birth certificate if the child has already been born;
when the child reaches the age of majority, his official consent is provided;
notarized consent of one of the parties, if she is not against it, but cannot be personally present when establishing paternity;
consent of the guardian/trustee (if available);
a document confirming that the mother does not have the right to vote (deprivation of parental rights, recognition of incapacity, etc.).

Each case is considered on an individual basis, so the package of documents attached to the application may vary.

You may be interested in: how to leave a child with his father during a divorce.

Through the courts

Paternity of a child born out of wedlock can also be recognized through the court. If the father or mother is against establishing the fact of paternity, the parties can also file a claim in court.

The entire procedure for registering the establishment of paternity by decision of a judicial authority is regulated by Article 54 of the Federal Law-143 “On Acts ...”.

In accordance with this article, legal proceedings are initiated when the following circumstances arise:

one of the parties is against the accomplishment of this fact, regardless of who the plaintiff is;
the mother has entered into a new legal marriage, and the biological father wants to take responsibility for the maintenance and upbringing of the minor;
the official father challenging the fact of biological paternity.

In addition to the claims (claim), the plaintiff must attach the following documents:

identification;
birth certificate;
document confirming payment of the duty.

The main circumstance for a judicial authority to make a positive decision in establishing paternity is a solid evidence base, namely:

conducting genetic testing with a minor;
blood type match;
witness statements, etc.

The more compelling the evidence, the greater the chance of recognition of biological paternity.

Important! If the father or mother is against the DNA test or the father denies in every possible way a relationship with the minor, then the judicial authority may regard this as a fact of recognition of paternity (Article 79 of the Code of Civil Procedure).

After five days, the court schedules the first hearing in the case, where it hears the evidence, objections of the parties, requests to postpone the hearing, etc. If there is no compromise between the parties or there is insufficient evidence, the judicial authority may order a control DNA test. If a positive decision is made, the parties with the received court order are required to visit the registry office, where they will re-register the child’s documents.

Rights of an illegitimate child

The rights of a minor are prescribed in Chapter 11 of the Family Code. According to the provisions of this chapter of the law, every minor has the right to be raised in his family by his parents, as well as to receive information about his parents. For example, establishing paternity guarantees the child respect for his right to know his parents. In addition, every minor (including those born out of wedlock) has the right to bear the surname of their father (Article 58 of the Family Code of the Russian Federation).

Particular attention should be paid to Article 53 of the Family Code of the Russian Federation, which legislates the rights and obligations of minors born from unmarried parents. The literal interpretation of this article indicates that children of persons born out of wedlock are entitled to a full set of rights. Also in accordance with Art. 60 of the Family Code of the Russian Federation, minors have the right to receive full financial support from their parents, and a similar obligation is imposed on persons who are not in a marital relationship. The responsibilities of such persons to support their children are enshrined in law, and the law does not allow neglect of these responsibilities.

It is important to keep in mind that if paternity is established, the father may be required to pay child support. Alimony can be collected by court decision, including for children out of wedlock. An important point: the mother of illegitimate children does not have legal grounds to receive alimony for her maintenance, and can only receive alimony for a minor. Child support for a minor is another guarantee enshrined in law.

Adoption of illegitimate children

It must be borne in mind that the concepts of “adoption” and voluntary recognition by the father of his child are identical. That is, adoption is understood as a voluntary application by both a man and a woman who are parents, who previously for some reason did not want to register a minor, but it is the registration of the fact of birth that gives the child all the rights due under the law.

Often fathers are in no hurry to recognize the child, believing that the lack of registration of relations with his mother gives them the opportunity not to pay child support, but this is a common misconception.

Thus, if a child was born out of wedlock, the father is subsequently not deprived of the opportunity to adopt a minor. In the case of adoption in such a situation, the obligation to pay alimony may not arise if the father voluntarily transfers money on a monthly basis to support the persons whose father he is recognized as.

In addition, fathers often resort to adoption in order to subsequently receive alimony from their son or daughter for their own maintenance. The obligation to support disabled parents and pay them alimony is enshrined in Art. 87 of the Family Code of the Russian Federation.

Also, the need for adoption is often determined by the desire to pass on an inheritance. For persons born out of wedlock, receiving an inheritance after the death of one of the parents becomes possible only if family ties are confirmed, since the inheritance often includes real estate or other valuable things. An illegitimate son or daughter enters into inheritance as primary heirs in accordance with Art. 1142 of the Civil Code of the Russian Federation, since they have the same grounds to receive an inheritance as legitimate heirs.

Basic information

Paternity is a relationship between a man and a child and must be confirmed by an appropriate entry in the documents of the registry office. When a couple lives in an officially registered marriage union, the woman’s husband is automatically registered as the father of the minor. If a couple lives in a civil/guest marriage or has separated, then paternity is determined independently - in the registry office or in court.

Current legislation does not establish a penalty for determining paternity if the couple has not officially registered their marriage. However, the defendant will need to pay all legal costs if paternity is established through the court. Expenses include conducting an examination, paying state fees and legal services.

Not all couples are in an officially registered union at the time when the woman is expecting a child or has already given birth to one. Recognition of paternity outside of marriage depends on the following circumstances:

whether the woman wants the father to be included in the documentation issued for the child, or the mother is against it;
does the man have any doubts that the child is really his;
whether the man agrees to carry out the procedure for establishing paternity on a voluntary basis.

Experts do not recommend establishing paternity before the baby is born. In this case, you will need to conduct a DNA test, for which you need to take biological material from the fetus by performing a puncture. This procedure is quite painful and dangerous, and there is a risk of losing the child. As a result, it is better to wait until the child is born and only then determine the presence or absence of kinship.

Registration of children born out of wedlock

As noted above, registration of a newborn is a mandatory procedure and takes place in the registry office. A newborn, as a rule, is registered at the request of the mother with documents confirming her identity, as well as on the basis of documents from the maternity hospital. You can find out more precisely what documents will be needed for registration on the official website of the civil registry office in a particular subject. As for mothers who are not in a marital relationship, for them, information about the father of the newborn can be recorded from the words of the mother, and if the father wants to recognize the child, both mother and father must appear jointly at the registry office.

Also, for women who are not in an official relationship, it is possible not to include information about the father in the birth certificate and to assign their last name to the minor.

Subsequently, after establishing the fact of family ties between the newborn and his father in court, changes may be made to the birth book regarding information about the father.

Author of the article

Arbitrage practice

Cases of recognition or denial of paternity, as a rule, are associated with a dispute between parents and require competent legal support in preparing the claim and the evidence base.

Another difficulty that often arises during paternity proceedings is the need to conduct a DNA examination, an expensive forensic procedure. Proving paternity without DNA is possible. But as a rule, this happens in cases where the defendant fully admits the claim and does not deny his paternity, or if the plaintiff can collect other reliable evidence.

Example In March 2021, plaintiff O. Nikonova filed a claim with the district court of Krasnodar to recognize V. Petrichenko as the father of her two daughters, born in 2011 and 2013.

The plaintiff indicated at the court hearing that she was in a close relationship with the defendant from 2010 to 2013. At the same time, two daughters were born. The defendant recognized his daughters as his own, visited them, and provided financial support. However, in the children’s birth certificates, the father was indicated as the plaintiff’s husband, Nikonov T., with whom she was married, but did not live together. In 2015, the plaintiff divorced her husband.

As evidence of the paternity of V. Petrichenko, the plaintiff presented to the court joint photographs and excerpts from online correspondence in which the defendant called the plaintiff’s children his daughters. The plaintiff also filed a petition to hear testimony confirming cohabitation during pregnancy and childbirth, as well as the defendant’s care for the children.

The defendant Petrichenko V. admitted the claim. Nikonova O.'s claims were satisfied.

If the court makes a positive decision, paternity must be formalized in the registry office - by making a record of establishing paternity and making changes to the birth record, as well as issuing a new birth certificate.

After this, natural legal consequences will occur for the child and the parent - the father will acquire rights and bear responsibilities in relation to the child - to care for, educate, support, and represent the interests of the child as his legal representative.

Expert opinion

Semyon Frolov

Lawyer. 7 years of experience. Specialization: family, inheritance, housing law.

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