Who got around the law for 300 days. Examples from judicial practice

You will soon be the father of a child, but you are not married. The mom of your unborn child recently filed for a divorce. A joyful birthday of the baby comes, then a joyful first week and a joint trip to the registry office. and suddenly the registry office tells you that from the moment of the divorce of the child's mother is not 300 days, and that they are "required by law to register the child with the ex-husband," after which the actual husband can challenge his paternity in federal court.

You are shocked! Calm! The purpose of this site is to help sort out this problem.

So if you disagree 300 days after divorce your crumbs on a stranger, then:

Read the Family Code Russian Federation(RF IC), namely Articles 48, 51, 52.

Get acquainted with article 17 of the federal law on acts of civil status No. 143 of 22.10.1997.

Review the birth application forms 300 days after divorce establishing paternity

Article 48, clause 2 of the RF IC states that "the father of the child is the spouse (former spouse) of the mother, unless proven otherwise" and refers to Article 52.

Article 52, paragraph 1, from the very first words, refers to Article 52 "Entry of parents in the register of births, made in accordance with paragraphs 1 and 2 of Article 51"

Article 51 paragraph 1 indicates that if the mother and father of the child are married, then they are registered by the parents, while paragraph 2 indicates the need to submit a joint application of the father and mother if they are not married.

Article 48, paragraph 3, regulates the establishment of paternity by a joint application of the mother and father to the registry office.

Already from the listed articles, it is clear that:

in the event that the marriage between the FATHER and the MOTHER is dissolved and less than 300 days have passed from the dissolution to the moment of birth, then the former spouse is entered by the father, while the mother does not need to prove anything (this is called the presumption of paternity)

otherwise, if the child's FATHER and MOTHER are not married, then the father fits in on the joint application of the father and mother.

In our case, the mother and father of the child come to the registry office and, with a joint statement on the establishment of paternity, voluntarily recognize themselves as the parents of the child. At the same time, there is no one who could dispute this fact. The Family Code does not recognize the ex-husband's right to the child, it only allows the mother to register the child with the ex-spouse, without the need to prove his paternity in judicial procedure.

When reading Clause 2 and Clause 3 of Article 17 of the Federal Law No. 143 and Clause 2 and Clause 3 of Article 48 of the RF IC, one should proceed from the position of who the applicants recognize themselves when they come to the registry office.

It should also be noted that until 1997 in Article 48 of the RF IC there existed clause 3 (see changes), which did not allow an ambiguous interpretation of the IC in our case. Paragraph 3 before the amendment contained the following: "If the mother of the child declares that the father of the child is not her spouse (former spouse), paternity in respect of the child shall be established according to the rules provided for in paragraph 4 of this article or article 49 of this Code."

At the same time, clause 4 of article 48 remained unchanged. That is, since 1997, it has been clause 3 of Article 48.

What was the reason for the exclusion of such a remarkable point is anyone's guess. The changes were adopted in connection with the adoption of Law No. 143 on acts of civil status (this can be seen in the law ON AMENDMENTS AND ADDITIONS TO THE FAMILY CODE OF THE RUSSIAN FEDERATION). In this regard, it can be assumed that paragraph 3. of article 48 of the RF IC was excluded due to inexpediency, because article 17, paragraph 2 and paragraph 3, are not ambiguous in interpretation and a joint statement of the actual father and mother of the child is sufficient to record the act on the birth of a child and the entry of the father there on the basis of an application for establishing paternity submitted simultaneously with the application for birth.

What to do if the registry office employee stands his ground, claiming that he is obliged "by law" to register the ex-spouse as the father of the child?

Action plan in this situation:

Take from the registry office a receipt for payment of the state duty for the voluntary establishment of paternity (perhaps they will refuse to give you a receipt after learning that 300 days have not passed since the child's mother divorced). Pay the state fee.

Fill out a birth application using form number 1

Fill out an application for establishing paternity using form No. 12

Attach a certificate from the maternity hospital to the above documents to go to the registry office

An employee of the registry office is obliged to accept your documents in accordance with Article 7 of the Federal Law No. 143 and either register the birth or respond with a written refusal (Article 11, Clause 1 and Clause 2)

Appeal against a written refusal in accordance with Article 11 Clause 3

Notes:

when filling out an application for establishing paternity, the child on the first page must have the mother's surname. On another page, you can optionally indicate the name of the applicant father

in case of refusal to accept documents, you can send them by registered mail with notification attaching a cover letter

The “300-day rule” is a common basis for civil registration offices to refuse newly divorced or widowed mothers to register their child as the biological father of the newborn.

Related materials:

It is believed that a child born within 300 days of a divorce (or the death of a husband) should automatically be "" on the ex-husband. Is it so? What to do in a situation when, when registering a child, the registry office strives to write to the ex-husband instead? Let's figure it out!

Why are the employees of the registry office firmly convinced that no one other than the ex-husband should be registered as a father, even though in reality he may not be?

The grounds for such a decision of the registry office:

1. Article 48 of the Family Code: “If the child was born from persons who are married to each other, as well as within three hundred days from the date of dissolution of the marriage, its invalidation or from the moment of the death of the spouse of the mother of the child, the spouse (former spouse) of the mother is recognized as the father of the child, unless proven otherwise (Article 52 of this Code). The paternity of the child's mother's spouse is certified by a marriage record. "
2. Article 17 of the Federal Law "On Acts of Civil Status": "If the marriage between the parents of the child is dissolved, declared invalid by the court, or if the spouse has died, but no more than three hundred days have passed from the day of the dissolution of the marriage ... until the birthday of the child ... information about the father of the child [entered] - on the basis of the parents' marriage certificate or other document confirming the fact state registration marriage, as well as a document confirming the fact and time of the termination of the marriage ... If the parents of the child are not married to each other, information about the mother is entered in the record of the child's birth certificate in the manner prescribed by paragraph 1 of this article ... Information about the child's father in this case, they are entered on the basis of the record of the act of establishing paternity in the event that paternity is established and registered simultaneously with state registration "

The Family Code does not recognize the ex-husband's right to a child; it introduces the presumption of paternity. Those. the mother of the newborn child is not obliged to prove to anyone (including through the court) who is the father of the child and can simply write down the ex-husband's father as the father of the child. Maybe, but it shouldn't.

It is legally established that “if the child’s parents are not married, ... the record of the child’s father is made at the joint application of the father and mother of the child, or at the request of the child’s father, or the father is recorded in accordance with a court decision” (Chapter 10, Art. 51 of the RF IC).

The article of the law "On acts of civil status" does not say "unless proven otherwise." However, the law is based on the norms of the Family Code of the Russian Federation. In article 52 of the RF IC, this is the most "different". “Other” is a joint application to the registry office from the mother and father of the child on the establishment of paternity.

In the overwhelming majority of cases, parents, submitting a joint application to the registry office for voluntary establishment of paternity, receive an oral refusal from the registry office. And hardly anyone succeeds the first time, although a joint statement from the child's parents is a voluntary recognition of themselves as parents and there is no one who could dispute this.

It is from this position that you need to approach the filing of an application to the registry office for establishing paternity.

So, you are about to apply for paternity already knowing that you will be refused. What to do?

1. Take a receipt for payment of the state duty for the voluntary establishment of paternity and pay it (now the amount of the duty is 200 rubles).
2. Fill out the birth application (form No. 1), indicating in the application, of course, the names of both parents. It happens that the registry office may offer to leave the column for the father's name empty - do not agree, otherwise the data of the ex-spouse will be entered there.
3. Fill out an application for establishing paternity (form No. 12).
4. Attach a certificate from the hospital to the documents.

If the registry office employee refuses to accept the documents, he must respond with a substantiated written refusal in accordance with Article 11 of the Federal Law "On Acts of Civil Status". In case of refusal not only to accept the documents, but also to issue a written refusal, the documents can be resent to the same registry office by registered mail with notification.

You can try, having received a refusal from the registry office at the place of birth of the child, submit documents to the registry office of the father.

If a written refusal is received - appeal it!

An appeal against a written refusal takes place in court in accordance with Article 11, Clause 3. Simultaneously with the appeal of the refusal, the father of the child can apply to the mother for the establishment of paternity, which she recognizes. If it is not possible (for any reason) to appeal the refusal from the registry office, on the basis of the court decision on establishing paternity, the child's birth certificate will be amended.

The problem, if the child has not yet been born, can be solved in another way. After divorce, the expectant mother needs (on the basis of a divorce certificate with the assignment of a maiden name or a decision to change the last name, first name or patronymic). There will be no marks of marriage and in the registry office at the place of birth of the child or at the place of registration of the father, the problem described above will not arise (it can arise only in the registry office in which the marriage and divorce of the child's mother was registered). Although here you have to cheat and not indicate that the mother was married. They will not be able to check (and will not want to).

QUESTION: My daughter and her husband divorced at the end of June 2013 (a divorce document was received). She left her husband's surname, since she has a son from this marriage. Since April 2013 he has been living with another man, not scheduled. She gave birth to a child on January 22, 2014. The child's father came to the registry office to issue a birth certificate in his last name. There he was denied this, referring to the law - less than 300 days after the divorce and the surname can only be given to the mother, i.e. first husband). 1. Is it possible in this situation to submit a joint application for establishing paternity, if the parents are not signed, and issue a certificate for the father's surname.
2. And what does 300 days have to do with it, if there is a father of a born child. Is it really necessary to wait 3 months to receive a birth certificate for the father's surname?

LAWYER'S ANSWER: You have come under the "presumption of paternity". Clause 2 of Article 48 of the Family Code of the Russian Federation establishes the presumption of paternity: If a child is born from persons who are married to each other, as well as within three hundred days after the day of divorce, its invalidation or from the moment of the death of the child's mother's spouse, the former spouse is recognized as the father of the child (spouse) of the mother, unless proven otherwise (Article 52 of this Code). The paternity of the spouse of the child's mother is certified by a marriage record.

You have the right to file a claim for establishing paternity. The mother of the child will be the plaintiff, the former spouse will be the defendant. And the third person needs to involve the biological father. If the Parties in the court confirm the indicated circumstances in a protocol, the court decision will establish the surname, name and patronymic of the father. The Civil Registry Office, on the basis of a court decision, makes changes to the birth record of the child.
This right is established by Art. 52 of the Family Code of the Russian Federation, according to which the parents' record in the birth register can be changed by a court decision.
Presumption of paternity of up to 300 days is established to protect the interests of the mother

SAMPLE PATERNITY CLAIM :
Defendant XXX and I were married, which was terminated on 08.01.2012. on the basis of a joint application of the spouses.
HH, MM, YY. my daughter XXX was born (I attach the birth certificate). The father of the child in the birth certificate (record of the birth act No. XX) indicates the defendant in accordance with the requirements of paragraph 2 of Art. 48 of the Family Code of the Russian Federation (presumption of paternity), since at the time of the birth of his daughter, less than three hundred calendar days had passed since the dissolution of the marriage.
The information about the father contained in the birth record No. XX is unreliable due to the following circumstances.
Family relations with XXX in fact were terminated before the divorce - since October 2012, we did not run a common household.
In fact, I lived with XXX in an apartment at Yaroslavl, st. ______. We run a common household. We have developed a family relationship and the biological father of my daughter DDD. is TTT.
By virtue of paragraph 2 of Art. 51 of the Family Code of the Russian Federation, if the parents are not married to each other, the record about the mother of the child is made at the request of the mother, and the record about the father of the child - at the joint application of the father and mother of the child, or at the request of the father of the child (paragraph 4 of Article 48 of this Code) , or the father is recorded according to the court order.
According to Art. 52 of the Family Code of the Russian Federation, the entry of parents in the register of births, made in accordance with paragraphs 1 and 2 of Article 51 of this Code, can be challenged only in court at the request of a person recorded as the father or mother of the child, or a person who is actually the father or the mother of the child, as well as the child himself upon reaching the age of majority, the guardian (curator) of the child, guardian of the parent, recognized by the court as legally incompetent.
The circumstances set out in this statement of claim are not disputed by the defendant. I will try to ensure the presence of the defendant.
Taking into account the above circumstances, guided by the requirements of Art. 48, 51, 52 of the Family Code of the Russian Federation, Art. 131-135 Code of Civil Procedure of the Russian Federation,

I ASK FOR COURT:

Establish that XXX HH.MM.YY. year of birth, place of birth: _______, is the father of DDD HH.MM.YY year of birth, place of birth g
To oblige the Civil Registry Office of the Dzerzhinsky District of Yaroslavl to amend the act entry No. XX from the date of the following content:
Exclude information about XXX recorded by the child's father;
Register the child's father "LLC";
Change the surname and patronymic of the child and write it down as "DDD".