Family lawyer Establishing the fact of recognition of paternity

On this issue, the Supreme Court of the Republic of Kazakhstan adopted regulatory Resolution No. 7 "On judicial practice in cases of establishing paternity and recognition of paternity" with amendments and additions as of March 31, 2017, which should be guided by. According to article 49 of the KBS, in the event of the death of a person who recognized himself as the father of a child, but was not married to the child's mother, the fact of his recognition of paternity may be established in court. This fact can be established by the court both in the case when the child was dependent on the person at the time of his death, and earlier if this person recognized himself as his father. Such a fact, taking into account specific circumstances, may also be established by the court in respect of a child born after the death of a person who, during the mother's pregnancy, recognized himself as the father of the unborn child. The following circumstances should be included in the subject of proof: - the death of a person who recognized himself as the father; - the time of the child's birth; - the absence of a registered marriage between the child's mother and the alleged father; - the purpose of establishing the fact (obtaining a certificate of inheritance, registration of benefits, etc.).

These circumstances are confirmed by the following necessary evidence: - death certificate; - birth certificate of the child; - evidence confirming the absence of marriage registration between the child's mother and the alleged father; To compile the evidence base, you can use: - written evidence, from which it follows that the deceased recognized the fact that he had a child; - photographs and videos; - witness statements; - other evidence capable of confirming the recognition of the deceased citizen of his actual child during his lifetime. As a rule, the application is submitted by a person who was in a civil marriage with the deceased, but at the birth of a joint child, paternity was not properly registered. Most often, such facts give rise to legal consequences in the form of receiving survivor's benefits in accordance with the Law of the Republic of Kazakhstan "On State social benefits for disability, Survivor's loss and age in the Republic of Kazakhstan", entry into inheritance rights. It can be seen from the materials presented for summarization that, in general, judges correctly apply the norms of current legislation when making a decision on the category in question, providing sufficient evidence to substantiate the legality of the applicant's claims in the form of written documents, witness statements, photographs, etc., indicating that it is impossible for the applicant to obtain proper documents certifying the paternity of a particular person in another order. in relation to a specific child. As a rule, the guardianship and guardianship authority, the registry office department, as well as other persons, including relatives of the deceased, are involved as interested parties.

Meanwhile, sometimes some courts do not identify and do not involve the relatives of the deceased in the case, not taking into account that the establishment of such a fact is associated with the acceptance of inheritance. Failure to comply with these requirements may lead to the cancellation of judicial acts that have taken place in the case, since quite often in this category of cases there is a dispute about inheritance law, which must be considered in the order of claim proceedings. Often, the courts present the operative part of the decision in this category of cases in different ways. For example, in the case in connection with the statement of G. On establishing the fact of recognition of paternity, the court decided: "To recognize the fact of paternity of K., born on December 21, 1982, a native of the city of Pavlodar, Pavlodar region, who died on September 7, 2015, in respect of G., born on October 22, 2013." In another case, on K.'s application for recognition of paternity, the court decided: "To establish the fact of recognition for K., born on June 26, 1959, who died on June 29, 2010, of paternity for K., born on December 18, 1985." It seems that the operative part of the ruling in the second case is stated more correctly and corresponds to the content of the established fact, since a person who recognized himself as the father of a child during his lifetime may not actually be his biological father.  Since, by virtue of the requirements of Article 309 of the CPC, a court decision to establish a fact of legal significance is the basis for state registration of the relevant right and the issuance of relevant documents, if such a right is subject to registration without replacing the documents issued by these authorities, the content of this fact must be fully disclosed in the operative part of the decision. When considering cases on establishing the fact of recognition of paternity, courts should clearly distinguish between the requirements for establishing paternity and establishing the fact of recognition of paternity. The establishment of paternity is carried out by the court in a lawsuit, while the application for establishing the fact of recognition of paternity is carried out in a special procedure. 

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