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.
N. applied to the court to establish the fact of recognition of paternity, stating that he was the illegitimate son of T., who died on August 21, 2016. On the birth certificate, in the column "father", the name and patronymic of T. are indicated. The deceased T. recognized him as his son during his lifetime, which can be confirmed by numerous friends of his father, this is confirmed by photographs showing him and his father on vacation, at home and on various holidays. In addition, he has a sister, whose father is also T., which is reflected in her birth certificate and in the certificate of paternity. The establishment of this fact is necessary for him to enter into the inheritance. The decision of the Al-Farabi District Court of Shymkent dated October 25, 2016 denied the application. By the decision of the Judicial Board for Civil Cases of the South Kazakhstan Regional Court dated December 28, 2016, the court's decision remained unchanged. The Judicial Board for Civil Cases of the Supreme Court overturned the judicial acts of the local courts and issued a new decision to satisfy N.'s application. The fact of recognition of paternity during T.'s lifetime was established in relation to N. on January 22, 1995. The petition was granted on the following grounds.
In accordance with article 49 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", 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 in accordance with the CPC. When establishing paternity in court, the court, in accordance with Article 48 of the CPC, takes into account evidence reliably confirming the origin of the child from a particular person. In rejecting the application, the court of first instance argued that no evidence had been provided of the cohabitation of the applicant's mother G. with the deceased T. before the birth of the child, the management of a common household and the upbringing of the child. The testimony of witnesses Kh., Z., A., M., S., R., P., K., D., Yu., Zh., and I., who confirmed the fact of T.'s recognition of his paternity in relation to the applicant N. during his lifetime, was declared unfounded by the court, stating that they had not confirmed this with any evidence and could not accurately to confirm the fact of cohabitation of T. with G. While leaving the court's decision unchanged, the court of appeal agreed with the conclusions of the lower court, while not accepting the conclusion of the molecular genetic examination as evidence, arguing that the applicant had not proven cohabitation with the deceased, running a common household with his mother before his birth, as well as their joint upbringing and maintenance.
Thus, the conclusions of the courts of first instance and the appellate instances are based on the absence of evidence of cohabitation, running a common household and raising a child of the applicant's mother with the deceased T. Meanwhile, the board of these conclusions of the courts considered erroneous, based on a misinterpretation of the provisions of Article 48 of the CPC. In the petition, N. indicates that on August 21, 2016, his father, T., died suddenly, with whom his mother G. had been in a close relationship since 1988, but was not married. during his lifetime, he recognized him as his son, helped in every possible way in matters of his maintenance and upbringing. On the birth certificate, the mother's last name is indicated in the father column, but his father's first name and patronymic are indicated. T. raised him, participated in his life, they went on vacation together. Moreover, on August 20, 2008, their second child was born in the family, T.'s younger sister, in respect of whom T. established paternity. In the court of first instance, N. filed a request for a genetic examination to determine T.'s paternity, but it was rejected by the court. It follows from the case file that, on the applicant's initiative, a molecular genetic examination was carried out, according to which N. and his sister O. are full sublings, i.e. they have 96.1336% common parents. This expert opinion was not accepted by the court of appeal as evidence with reference to part 7 of Article 92 of the CPC, due to the lack of evidence of the fact of living together, running a common household. In accordance with this provision of the law, the expert's opinion is not binding on the court, but in case of disagreement with it, this should be indicated in the court's decision. The board found the disagreement of the court of appeal with the expert opinion on the grounds of the lack of evidence of cohabitation, running a common household and raising a child by the applicant's mother, etc. to be unfounded. Thus, the provisions of Article 48 of the CPC provide for the establishment of reliable evidence confirming the recognition of paternity, rather than a set of evidence confirming cohabitation, running a common household, and raising a child together, as required by the provisions of the Code of the Republic of Kazakhstan "On Marriage and Family", in force until January 01, 1999. An expert's opinion is evidence obtained as a result of examining evidence using special scientific knowledge. The expert's opinion on this case is affirmative, and the court has not questioned the conclusion itself or the examination procedure. Moreover, the expert's conclusion does not contradict the totality of evidence reliably confirming the fact of recognition of paternity. In particular, the applicant presented to the court numerous photographs showing him and his father T. on vacation, at home and on various holidays from childhood to adolescence. The witnesses H., Z., T., M., S., R., P., K., D., Y., J., I. confirmed at the hearing the fact of the confession during the life of T. his paternity in relation to the applicant N. Taken together, the board stated that the circumstances of the case had been fully established by the court, but an error had been made in the application of substantive law, and therefore the contested judicial acts had been annulled with a new decision to satisfy N.'s application for recognition of paternity.
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