Establishing the fact of family relations
It should be borne in mind that in connection with the entry into force of the Civil Procedure Code of the Republic of Kazakhstan on 01.01.2016 (31.10.2015 No. 377-SAM), the issues of establishing the fact of kinship relations are regulated by subsection 4 "Special proceedings", Chapters 31, 32 of the Civil Procedure Code.
At the same time, a new norm has been introduced in Chapter 31 of the CPC, Article 303 of the CPC of the Republic of Kazakhstan, on preparing for the trial of special proceedings.
According to the said norm, in accordance with the procedure provided for in Article 165 of this Code, with the specifics established by Chapter 31 of this Code, the judge shall prepare the case for trial within ten working days from the date of acceptance of the application to the court.
An extension of this period is not allowed. The procedure for the consideration of special proceedings has been changed, which in the previous CPC was regulated in Article 290 and provided that if, during the consideration of a case in special proceedings, a dispute arises under the jurisdiction of the court about the law, the court issues a ruling on the consideration of the case in the order of the claim proceedings.
According to Article 304 of the new CPC, cases of special proceedings are considered by courts according to the rules of claim proceedings with the specifics established by Chapters 31-49 of this Code.
The court considers cases of special proceedings with the participation of the applicant and interested persons. If, when filing an application or considering a case in a special proceeding, it is established that there is a dispute over the law under the jurisdiction of the court, the court issues a ruling on leaving the application without consideration, which explains to the parties and interested persons their right to appeal to the court in the order of the claim proceedings.
According to Part 2 of Article 183 of the CPC, civil cases of special proceedings are considered and resolved by the court within up to one month from the date of completion of the preparation of the case for trial.
According to Article 292 of the Civil Procedure Code of the Republic of Kazakhstan (Article 306 of the Civil Procedure Code of the Republic of Kazakhstan dated 31.10.2015, effective 01.01.2016), the court establishes facts of legal significance only if it is impossible for the applicant to obtain proper documents certifying these facts in another manner, or if it is impossible to restore lost documents.
An application for establishing the fact of a family relationship of legal significance is submitted to the court in writing or in the form of an electronic document at the applicant's place of residence.
According to art. 294 of the Civil Procedure Code of the Republic of Kazakhstan (art. 308 of the Civil Procedure Code of the Republic of Kazakhstan dated 31.10.2015, effective from 01.01.2016 - in the application for establishing the fact of kinship, it must be indicated which fact and for what purpose the applicant needs to establish.
In addition, the applicant must provide evidence confirming the impossibility of obtaining proper documents or the impossibility of restoring lost documents.
According to the above-mentioned rules of the procedural law, the courts consider all cases of establishing facts of legal significance, including establishing the fact of kinship relations, only in cases where, according to the law, such facts give rise to legal consequences (the emergence, modification or termination of personal or property rights of citizens or organizations), the applicant has no other opportunities to obtain or restore proper documents certifying the fact (art. 292 of the CPC RK, art. 306 of the Civil Procedure Code of the Republic of Kazakhstan dated 31.10.2015), while the current legislation does not provide for another (non-judicial) procedure for their establishment and the establishment of such a fact is not associated with the subsequent resolution of the dispute under the jurisdiction of the court.
In view of the above, the courts should, when accepting an application, clarify the applicant's legal interest in establishing the fact of kinship, and require the applicant to provide written evidence indicating the impossibility of obtaining or restoring a proper document certifying this fact.
If the current legislation provides for a different (non-judicial) procedure for their establishment, then the court, in accordance with paragraph 1) of Part 1 of Article 153 of the CPC RK (Article 151 of the CPC RK dated 31.10.2015), the application must be refused. In case of erroneous acceptance of the application and initiation of the case, it is subject to termination on the basis of Part 1 of art. 247 of the CPC RK (art. 277 of the CPC RK dated 31.10.2015).
When accepting an application for establishing a fact of legal significance, including establishing the fact of kinship relations, the judge, having established that there is a dispute about the right, in accordance with art. 155 of the CPC, issues a ruling on leaving the application without motion, in which he indicates that the claimed claim is subject to consideration in the order of claim proceedings and invites the applicant fulfill the requirements of Articles 150, 151 of the CPC within the prescribed period.
If the instructions set out in the definition are not followed, the application is considered not submitted and is returned to the plaintiff with all the documents attached to it.
At the same time, it should be noted that the CPC of the Republic of Kazakhstan, which entered into force on 01.01.2016 and dated 31.10.2015, does not provide for the possibility of leaving applications without movement. If, during the consideration of the case, a dispute arises about the law under the jurisdiction of the court, the court is obliged to issue a ruling on the consideration of the case in the order of claim proceedings and explain to the applicant and other interested persons the need to comply with the requirements of Articles 150, 151 of the CPC within the time limit set by the court.
In case of non-fulfillment of the court's ruling, in accordance with Part 3 of Article 290 of the CPC, the application is left without consideration, and their right to file a claim on general grounds is explained to interested persons.
At the same time, it should be noted that the Civil Procedure Code of the Republic of Kazakhstan, which came into effect on 01.01.2016, dated 31.10.2015, namely, Article 304 of the Civil Procedure Code of the Republic of Kazakhstan, provides for a different procedure for court procedural actions in the event of a dispute over law, namely, if, when filing an application or considering a case in a special proceeding, it is established that there is a dispute over law under the jurisdiction of the court, the court issues a ruling on leaving the application without consideration, which explains to the parties and interested persons their right to appeal to the court in the order of claim proceedings.
In accordance with Article 293 of the Civil Procedure Code of the Republic of Kazakhstan (Article 307 of the Civil Procedure Code of the Republic of Kazakhstan dated 31.10.2015), an application in cases of establishing a fact of legal significance, including the fact of kinship, is filed with the court at the applicant's place of residence, with the exception of the fact of ownership, use and (or) disposition of immovable property, operational management, which is filed with the court at the location of the immovable property.
It should also be noted that according to paragraph 1 of Part 2 of Article 417 of the CPC RK (Article 467 of the CPC RK dated 31.10.2015), the courts of the Republic of Kazakhstan consider cases of special proceedings on applications from foreigners or stateless persons in cases where the applicant in the case of establishing the fact has a place of residence in the territory of the Republic of Kazakhstan or the fact that It is necessary to establish whether it took place or is taking place on the territory of the Republic of Kazakhstan.
When considering cases on establishing the fact of kinship relations, which was noted in the previous summary, it should be borne in mind that in accordance with paragraph 4 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On Judicial Practice in cases of establishing facts of legal significance" No. 13 dated 06/28/2002- the fact of kinship is established in court only in cases where the degree of kinship directly generates legal consequences, for example, if the establishment of such a fact is necessary for the applicant to obtain a certificate of inheritance or registration of the right to receive survivor's benefits.
When establishing family relations in order to receive inheritance, courts should proceed from the circle of heirs according to the law established by Chapter 59 of the Civil Code of the Republic of Kazakhstan.
If inheritance relations are governed by the norms of foreign law, the court, when establishing the fact of the applicant's relationship with the testator, must take these norms into account. In accordance with the legislation, eight queues of heirs are established by law, depending on the degree of their relationship with the testator (Articles 1061-1064 of the Civil Code).
The need to establish family relations in court usually arises if there are inaccurate or erroneous entries in the documents issued by authorized registration authorities, as well as when the primary documents are lost and cannot be restored by obtaining repeated certificates from the registry office.
1060 of the Civil Code of the Republic of Kazakhstan, according to which the heirs of each subsequent line inherit if there are no heirs of the previous lines, that is, in cases where the heirs of the previous lines are absent, or none of them has the right to inherit, or all of them are excluded from inheritance (art. 1045 of the Civil Code of the Republic of Kazakhstan), or disinherited (paragraph 4 of art. 1046 of the Civil Code of the Republic of Kazakhstan), or none of them accepted the inheritance, or all of them renounced the inheritance.
Thus, there are no legal grounds for establishing the fact of a kinship relationship between the testator and a person belonging to the heirs of the second and subsequent stages in the presence of heirs of the first stage who have accepted the inheritance, since such a fact will not have legal significance for inheritance.
With this in mind, in the process of preparing a civil case for trial, the court should invite the applicant to provide the following evidence, namely: a notary's certificate, whose competence includes the registration of an inheritance case against the deceased, containing information about which of the heirs accepted the inheritance; a certificate from the passport and visa service or housing maintenance organization that at what address was the testator registered and who was registered at the same address with him (to determine the circle of heirs who actually accepted the inheritance);
Thus, by the decision of the Kokshetau City Court of April 20, 2015 in the case of Mr. T.'s application to establish family relations with his deceased brother, T., the stated claims were satisfied and the fact of family relations was established. It can be seen from the decision that the applicant appealed to the court, since the notary refused to issue a certificate of inheritance according to the law, due to the presence of errors in the documents. At the same time, the notary was not involved in the case, but was involved in the case as an interested person by the State Institution "Department of Civil Registration of G. Kokshetau", which in principle has nothing to do with this case.
Similarly, in case No. 2-3042/15, upon the application of Mr. G. for establishing the fact of kinship relations, the State Institution "Department of Employment and Social Programs of Shymkent" was also involved in the case as an interested party and the application was satisfied by the decision of the Yenbekshinsky District Court of Shymkent dated July 23, 2015.
Meanwhile, it can be seen from the decision that the application for establishing the fact of kinship was also caused by the notary's refusal to issue a certificate of inheritance under the law, however, despite this circumstance, the notary was not involved in the case.
It should be noted that the above-mentioned State Institution was indicated as an interested party by the applicants, and the judges, when initiating civil cases and considering applications on the merits, did not take measures to involve the appropriate interested parties in the case, based on the circumstances of the case.
However, this omission of the court may lead not only to errors in establishing the facts of the testator's relationship with the wrong heir who is called upon to inherit, but also to a violation of the legitimate rights and interests of the heirs who have accepted the inheritance.
In the decision on establishing the fact of kinship, the court must indicate the degree of kinship between the applicant and the relevant person.
At the same time, it should be borne in mind, as mentioned above, the fact of family relations cannot be established when the applicant's appeal to the court is caused by the presence of incorrect entries in the acts of civil status. Such applications may be considered by the court in the manner prescribed by Chapter 37 of the CPC RK (Chapter 44 of the CPC RK dated 31.10.2015).
The decision of the Yenbekshikazakh District Court of the Almaty region dated June 19, 2015 in case No. 2-1047/15 on the application of Ms. M. to establish family relations with the deceased B., who is her biological father, denied the stated claim.
It can be seen from the contents of the decision that the applicant M. was adopted on 26.02.96 by her mother's husband K., the court, in rejecting the application, referred to the fact that the applicant had documents certifying the fact she insisted on, namely, a birth certificate and a record of paternity, as well as the fact that, according to art. 100 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" - an adopted child loses his personal non-property and property rights and is released from duties towards his blood parents.
It should be noted that this court's conclusion is also based on the provisions of Article 1060 of the Civil Code of the Republic of Kazakhstan, according to which an adopted child loses personal non-property and property rights and is released from duties towards his blood parents.
At the same time, it seems that since the establishment of the fact of family relations with the deceased B. does not entail legal consequences for the applicant, as was known from the contents of the application and the attached documents, it was necessary, in accordance with the provisions of paragraph 3 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On judicial Practice in cases of establishing facts of legal significance", to refuse to accept the application, or in case of erroneous acceptance and initiation of proceedings, to terminate the proceedings on the case, since there were no grounds for accepting the application and initiating a civil case.
The study of cases also shows that until now, citizens have been applying to establish the facts of kinship, when the impossibility of confirming kinship is caused by discrepancies in documents confirming kinship, and therefore applicants should have applied to establish the inaccuracy of records in accordance with the procedure provided for in Chapter 37 of the CPC RK (Chapter 44 CPC RK dated 31.10.2015), however, the courts continue to satisfy such applications.
Regulatory legal framework
The issues of establishing facts of legal significance are regulated by Chapters 30, 31 and 45 of the Civil Procedure Code of the Republic of Kazakhstan, the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On Judicial Practice in cases of establishing facts of legal significance" No. 13 dated 06/28/2002. In addition, the main regulatory legal acts regulating issues in this category of cases, and to be applied when considering applications for establishing the facts of kinship relations, are:
- The Constitution of the Republic of Kazakhstan;
- The Civil Code of the Republic of Kazakhstan;
- The Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family".
Attention!
The Law and Law Law Firm draws your attention to the fact that this document is basic and does not always meet the requirements of a specific situation. Our lawyers are ready to assist you in drafting any legal document that suits your situation.
For more information, please contact a Lawyer/Lawyer by phone; +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases disputes Defense Arbitration Law Company Kazakhstan Law Firm Court cases
President
Republic of Kazakhstan
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases
