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Filiation in the romanian Civil Law

Cristina Diana Toma
Cristina Diana Toma

The Romanian Civil Law establishes two types of filiation:
1. Mother filiation;
2. Father filiation.

The filiation of the child born with married parents and filiation of the child born with unmarried parents

The mother filiation derives from the birth of the child. This can be established in two ways: by direct recognition of the child’s mother or using the judicial way.

For the father which is married to the mother of the child, the filiation is established by the paternity presumption.

For the father which is not married to the mother of the child in the birth moment, the filiation is established by direct recognition or using the judicial way.

The proof of the filiation

The proof of the filiation in the birth moment is made with the birth document and the birth certificate based on the birth document.

When we talk about a child which parents are married at the time of the child’s birth, the proof of the child filiation is based on the birth document and the marriage certificate of the parents and their birth certificates.

State possession is the fact that indicates the relationships between the child and the family.

The forms of the state possession are:
1. a person act like a child is his/her, taking care of its growth and education, and the child is acting like this person she/he is its mother or its father;
2. the child is recognized by the family, society, or public authorities, like is the child of the person who pretends that is the mother or the father of the child;
3. the child is named by the person who pretends is its father or its mother.

The state possession must be: continuously, peaceful, public, indubitable.

The mother filiation can’t be claimed by any other person.

Nobody can put in doubt the mother filiation which has the state possession like the birth document.

An exceptional situation when the proof of the real filiation can be done with any proof is when is established on the court the fact that the child was replaced or it was registered as the mother of the child another woman that the one who gave birth.

The conception legal time is the time between the three hundred days and eighteen hundred days before the birth. This time is measured day by day.

The paternity presumption:
The child born or conceived during the marriage of the parents has as a father the mother’s husband.
The paternity presumption can be denied if is possible that the husband can’t be the child’s father.

The child recognition by its parents, types:
1. The mother recognition when the birth was not registered or the child was registered with unknown parents.
2. The father recognition when the child is born and the parents are not married.
3. The child can be recognized only if it has descendants, after its dead.

The recognition forms:
1. The recognition made by a declaration in front of the local community public service of the people.
2. By authentical act.
3. By will.

The unmarried minor (mother or father of the child) can recognize by itself the child if he/she has discernment at the recognition moment.

The absolute and relative nullity of the child recognition

The absolute nullity of the recognition:
1. The recognition of a child which filiation, established by law, wasn’t removed.
2. The recognition was made after the child dead, and there are no descendants of the child.
3. The recognition was made in other forms than the ones provided by the law.

The relative nullity of the recognition:

The recognition can be annulled for error, maliciousness, or violence.

Who can contest the filiation recognition?

The unavailable recognition can be contested anytime by any interested person.

International civil law provisions regarding filiation
1. The filiation of the child with married parents.
2. The filiation of the child with unmarried parents.

The filiation of the child with married parents at the time of the childbirth

The applicable law:
1. The filiation of the child with married parents is established by the law, which, at the birth date, governs the general effects of the parents’ marriage.
2. If, before the child’s birth, the marriage of the child’s parents ended or they divorced, the applicable law is the law that governed the end of the marriage or the divorce.

The filiation of the child with unmarried parents at the time of the childbirth

The filiation of the child with married parents at the time of the birth is established by the national law of the child at the date of the birth.

If the child has many citizenships, other than Romanian citizenship, the applicable law of the citizenship is that is the most advantaged for the child.

Cristina Diana Toma

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