Understanding Filiation: A Guide to Parent-Child Legal Relationships
Understanding Filiation
Defining Filiation
Filiation is the legal relationship between a parent and child, establishing their rights and duties. This relationship can exist between a child and two parents of the opposite sex, or in cases of adoption. Key principles governing filiation include the equality of children, their protection, investigation of paternity, and the duty of assistance to younger children.
Types of Filiation
Filiation can be established through various means:
- Natural Filiation: This arises from biological parentage, either within or outside of marriage.
- Adoptive Filiation: This legal relationship is established through a judicial decision between the adopter and adoptee.
Filiation determines surnames according to legal provisions. If established through both parents, they can decide the surname order. Otherwise, the law dictates the order. Filiation also impacts kinship and custody arrangements for dependent or disabled children.
Marital Filiation
Children born within a marriage are considered marital. This includes children conceived before the marriage but born after the marriage takes place. Double affiliation is determined by birth registration alongside the parents’ marriage or a final court ruling.
Presumption of Paternity
A child born within 180 days of the marriage celebration carries a presumption of paternity by the husband. The husband can rebut this presumption within six months of the child’s birth, unless he has acknowledged paternity (expressly or implicitly) or knew of the pregnancy before marriage.
For children born after 300 days of marriage dissolution or separation, there is no presumption of paternity. However, if born before the 300-day mark, the presumption applies. Even with legal separation, a child can be registered as marital with the consent of both parents documented publicly or in the registration record.
Non-Marital Filiation
Children born outside of marriage are considered non-marital. There is no presumption of paternity in these cases. Non-marital filiation can be determined or undetermined. Determined filiation is recognized legally when parentage is established. Undetermined filiation applies to children whose parents are unknown, abandoned children, etc.
Non-marital filiation is determined by the will of the parents (or one parent), a legislative act, or a judicial decision. Legal means for determination include recognition before the registrar, in a will, other public documents, a court decision under civil registry law, or a final court ruling. Maternal affiliation is stated in the birth registration.
Determining Non-Marital Filiation
The Civil Registry Law and Regulation provide for the registration of non-marital filiation. This requires no opposition; otherwise, a final decision must be obtained through legal proceedings. Paternity can also be established through a criminal judgment.
Recognition of Filiation
Recognition is a statement made by a man or woman declaring their affiliation with a non-marital child. This grants the child the same legal status as a marital child. Recognition can be single or double, joint or separate, bilateral or unilateral.
Active Subject (Person Recognizing)
Both parents, regardless of marital status (single, married, separated, divorced, or widowed), can recognize a child. They must have legal capacity (age and not disabled). Recognition by an incapacitated person or unemancipated minor requires court approval after consulting the Public Prosecutor.
Passive Subject (Child Recognized)
Any biological child can be recognized, provided certain requirements are met (consent of the recognized child or their legal representatives, court approval, no opposition, etc.).
Forms of Recognition
Recognition must follow a binding form to be valid:
- Statement to the registry office manager during birth registration (domestic or abroad).
- Statement in a will (always valid and effective).
- Recognition in a public document (e.g., minutes of civil or canonical marriage, late registration cases, marriage and conciliation acts).