300 days from the date of divorce. Details about this rule

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Article 48.

Establishing the origin of the child
1. The origin of the child from the mother (motherhood)
established on the basis of documents confirming the birth of a child
mother in medical organization, and in the case of the birth of a child outside the medical
organizations on the basis of medical documents, testimony or
based on other evidence.
(v
ed. Federal Laws of 15.11.1997 N 140-FZ, of 25.11.2013 N 317-FZ)
2. If the child was born from persons
married to each other, as well as within three hundred days from the date
dissolution of marriage, recognition of it as invalid or from the moment of death of a spouse
the mother of the child, the spouse is recognized as the father of the child ( former spouse) mother, if not
proven otherwise (Article 52 of this
Of the Code). The paternity of the spouse of the child's mother is certified by a marriage record.
3. Excluded. - Federal Law of 15.11.1997 N 140-FZ.
3. Paternity of an unmarried person
with the child's mother, is established by filing with the recording authority
the civil status of a joint statement by the father and mother of the child; when
the death of the mother, recognition of her as incompetent, the impossibility of establishing the place
finding the mother or in case of deprivation of her parental rights - at the request of the father
the child with the consent of the guardianship and guardianship authority, in the absence of such
consent - by court order.
If there are circumstances giving reason to believe
that filing a joint paternity application may be
after the birth of a child is impossible or difficult, parents of the future
children who are not married to each other have the right to submit such an application to
the vital statistics authority during the mother's pregnancy. Recording
about the parents of the child is made after the birth of the child.
4. Establishment of paternity in relation to a person who has achieved
the age of eighteen years (majority), is allowed only with his consent,
and if he is recognized as legally incompetent - with the consent of his guardian or guardianship authority and
guardianship.
ConsultantPlus: note.
In accordance with Federal Law of 15.11.1997 N 140-FZ
paragraph 4 of Article 48 referred to in this Article shall be deemed to be paragraph 3 of the specified
articles.
Article 49. Establishment of paternity in
judicial procedure
V
in the event of the birth of a child to parents who are not married to each other, and when
the absence of a joint statement by the parents or the statement of the child's father (paragraph 4 of Article 48
of this Code) the origin of the child from a specific person (paternity)
established in court at the request of one of the parents, guardian
(guardian) of a child or at the request of a person who is dependent on
the child, as well as at the request of the child himself upon reaching the age of majority.
In this case, the court takes into account any evidence, with reliability
confirming the origin of the child from a specific person.
Article 50.
Establishment by the Court of the Fact of Acknowledgment of Paternity
In the event of the death of a person who recognized himself as a father
the child, but was not married to the child's mother, the fact of recognition by him of paternity
can be established in court according to the rules established by civil
procedural legislation.
Article 51. Registration of the child's parents in
birth register
1. Father and mother married between
by themselves, are recorded by the child's parents in the birth register upon application
any of them.
2. If
the parents are not married to each other, the record of the child's mother 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 child's father (paragraph 3 of Article 48

In the legislation of the Russian Federation, there is a prescription that can become the basis for refusing to register a newborn child to widows and recently divorced mothers in the name of the biological father. This is the so-called law "300 days", which must certainly expire from the date of the official dissolution of marriage or the death of the legal spouse before the birth of the baby. If 300 days after the divorce have not elapsed before the birth of the child, the law obliges the registry office to write it down in the name ex-husband mother of the newborn.

Details about this rule

The obligations of the registry office in this case are spelled out in two regulations: Art. 48 of the Family Code and Art. 17 of the Federal Law "On acts of civil status". Both of them talk about the presumption of paternity - the automatic recognition of the ex-husband as the father of the child, despite the fact that he may well not be the true father and not build family relationships with his wife long before the official termination of their marriage.

The corresponding entry in the Birth Certificate is made regardless of the opinion of the ex-husband, if the mother of the child agrees with this state of affairs. Moreover, even if the mother of the newborn informs the registry office employees that the former spouse is not his father, they will not be able to enter the information requested by the woman without presenting evidence. The presence of the former spouse is not required for the registration procedure. The situation will not change and the man's appeal to the registry office - the law in this situation is completely on the side of the ex-wife.

Why is the rule of three hundred days necessary?

It is designed to protect the interests of a woman left alone after a divorce. If at the dissolution of the marriage the wife was pregnant, her spouse is responsible for the upbringing and maintenance of the child. A woman is not obliged in any way to prove the paternity of her ex-spouse; the very fact of a legal marriage between them serves as proof of the law. Three hundred days is the maximum possible gestational age.

This is no less important for the baby himself, because thanks to this law, he has the right to alimony and other assistance from his father, despite the fact that the parents' marriage is dissolved.

What if the father is not an ex-husband?

It so happens that the biological father of a child is not the mother's legal spouse. This can happen for various reasons, for example, when a couple, without filing a divorce, as expected, is engaged in the arrangement of their personal life separately. Only going to court can help in this delicate situation.

If the period of 300 days after the dissolution of the mother's first marriage has not yet expired, and the child is born of the second spouse or another person, then the establishment of paternity is made in court in accordance with Art. 52 of the Family Code of the Russian Federation.

According to the law, the mother of the baby must be the first to go to court and act as a plaintiff, and the former spouse as a defendant. The actual father is involved as a third party. A joint appeal to the court of the mother and her de facto spouse - the father of the newborn is also possible. When filing a statement of claim, you must submit the following documents:

• a copy of the claim provided to the defendant;
• a photocopy of the child's birth certificate;
• a receipt from the bank confirming payment of the state duty;
• other evidence confirming paternity with attached copies for presentation to the defendant.

If a woman submits an application at the place of residence, then a certificate from the child's place of residence will also be required.

The procedure followed by the court for the voluntary establishment of paternity is simple. All parties protocolally confirm the circumstances indicated by the plaintiff, after which the surname, name and patronymic of the baby's father are established.

Based on the court decision, the registry office makes adjustments to the record of the parents of the newborn when the child is registered in the birth register.

In no case should you listen to advice on how to find a loophole in the law and hide the fact of marriage. Many expectant mothers are advised to return their maiden name upon divorce in order to receive a new passport without a marriage record. In fact, this method cannot bring a positive result for the reason that records are not deleted from a single computer database, therefore, it will not work to lie about the fact that there was no first marriage.

How to avoid confusion?

Parting with a spouse and planning further personal life in new family, you should not neglect such a procedure as the official divorce. This will free both spouses from unnecessary problems in the future, because none of them wants to meet in court, and even on such a delicate matter. Having divorced, the ex-husband and wife can no longer think about how many days have passed since the divorce, but with peace of mind create new happy families. Of course, it is not always possible to act exactly as prescribed in the law, but since family peace of mind depends on this, it is necessary to take all measures to formalize the relationship.

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 of 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 a 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".

Which regulates the main issues of divorce, division of property, upbringing and maintenance of children, etc. The chapters containing information on these issues are of particular interest. This is due to the fact that when newlyweds get married, there are no conflict situations, but when it is dissolved, they are almost always there. The problems of children and joint property are especially acute.

What does the law say about 300 days after divorce?

The law on divorce in the Russian Federation is presented Family Code, which contains all the main provisions. In addition, the same document regulates issues related to determining the fate of a child after the dissolution of the marriage of his parents. However, if everything is a little easier with children who have already been born, the decision of the fate of the unborn baby is more complicated. What patronymic to give him after birth? How to issue a certificate?

These and other questions are answered by Article 48 of the Family Code of the Russian Federation. It defines the rule of 300 days after the dissolution of a marriage between husband and wife.

The meaning of the rule is that a child who is born within 300 days from the date of divorce will bear the patronymic of the mother's ex-spouse, since it is he who is automatically recognized by the father.

There is a lot of controversy about this rule. The most common ones are:

• disagreement of the mother with the indication in the column "father" of the ex-husband;
• disagreement of the ex-husband with the indication of his name in the child's birth certificate;
• disagreement of the child's real father, who is not an ex-husband with such an order.

Depending on what kind of case takes place, it is necessary to act according to different scenarios. If the mother does not agree with the inclusion of the ex-husband in the birth certificate as a father, then this objection alone will not be enough. The registry office will be required to be guided by the provisions of Art. 48 of the RF IC and make an appropriate entry in the child's birth document.

To prevent this from happening, there are several options for action:

• contacting the registry office with the biological father of the child at the time of registration of the certificate. Exactly real father can come to the registry office and draw up a document, a certificate of establishment of paternity. In this case, the registry office employee will enter his data in the certificate;
• an appeal to the court of the ex-husband to challenge or renounce paternity. If the former spouse is sure that he is not the father of the child, he has the right to file a statement of claim, on the basis of which and with the consent of the mother, an analysis will be carried out. If his results show that his claim is justified, then his name will not be entered in the child's documents and he will not be recognized as a father.

The law on divorce of spouses is always, first of all, to protect the interests of the child. That is why the law on children upon divorce establishes a rule of 300 days after divorce. Resolution of the nuances falls on the shoulders of adults.

Property division law

A separate issue in family law is the question of the division of property in case of divorce. In Russia, it is also represented by the Family Code and regulates the division of everything that is acquired in an officially registered marriage from spouses.

The RF IC establishes two options for the spouses' property regimes:

• law;
• contractual.

The first option assumes the absence marriage contract and division of property in the event of divorce or the desire of one of the parties. The second option provides for the preparation of a marriage contract, which implies an indication of the rules and procedure for the division of everything that the spouses have acquired during the period of marriage.

The Property Division Act 2016 says that the share can be slightly increased or decreased in favor of one of the spouses. For example, a parent with whom minor children remain may receive a slightly larger share of the apartment than the other, as well as property intended for the children.

However, there are circumstances that cannot affect the legal section:

• the fact of registration of property in the name of one of the spouses;
• the fact of the acquisition of the object by one of the spouses;
• fact of write-off Money for a purchase from the account of a husband or wife.

When drawing up a marriage agreement, the procedure is completely different: the division will take place according to a scenario that the spouses themselves determine. The terms of the agreement include:

• the absence of illegal instructions and points in it;
• absence of incorrect, contradictory data, as well as errors, mistakes and inaccuracies;
• mutual and voluntary agreement to sign the contract.

The form of such a document is established as a notarial written one. That is why the spouses will have to contact a notary. If they are not sure that they can correctly develop a draft contract, they can pay for the services of a specialist, and he will do everything quickly and correctly.

After a divorce, a husband and wife have the right to divide all property peacefully and without involving a court. Often it is not possible to do this, so the interested spouse submits a statement of claim. It is considered taking into account the evidence, the views of the parties and in accordance with the law. If there is a marriage contract, the process is simplified even in a conflict, since the document sets out the order of the section.

Thus, with regard to determining the fate of the child and the division of property, there is great amount questions. All of them are regulated by the Family Code of Russia, including the rule of 300 days after divorce. It presupposes the indication of a newly divorced spouse as the father of a child born during this period. All disputes and conflicts over children and property between husband and wife are resolved in court.