Filiation proceedings
What is parentage?
Filiation, or a person’s parentage, is the legal or biological link between parents and children from which a series of effects, rights and obligations derive.
Types
The Civil Code establishes two types:
- By nature: It is that which exists between parents and biological children, whether they are natural or through assisted reproduction, and which in turn can be matrimonial or extramarital.
- By adoption: This takes place through the adoption of a child by means of a judicial decision dictated in a Voluntary Jurisdiction File on adoption.
Legal effects
Parentage produces its effects from the moment it takes place, and they are retroactive as long as it is compatible with the nature of the filiation.
It determines the surnames and entails the attribution of parental authority to the parents. The parents are obliged to provide maintenance. This proceeding also determines the birth of inheritance rights and grants the right to obtain Spanish nationality.
How is filiation determined?
By registration in the Civil Register, by the sentence that legally determines it, by the presumption of matrimonial paternity and, in the absence of the previous means, by possession of the state.
The determination of filiation will not be effective as long as another contradictory one is accredited.
Procedure for the claim and contestation of filiation
This is a special process regulated in article 764 and following of the Law of Civil. Procedure through which the aim is to obtain the judicial declaration of an undetermined filiation, or of a filiation different from the one previously determined.
Procedural specialities
In order to be admissible, the claim must be accompanied by a statement of evidence of the facts on which it is based. All types of evidence are admissible, including biological evidence, and even if there is no direct proof, filiation resulting from recognition, possession of status, or cohabitation, among others, may be declared.
Certainly, the unjustified refusal to submit to the biological paternity or maternity test will allow the court to declare the filiation claimed, provided that there are other indications of paternity or maternity and the proof of this has not been obtained by other means.
Protective measures
The court shall take appropriate protective measures in respect of the person and property of the person subject to the authority of the person appearing to be the parent and may order interim maintenance to be paid by the respondent. Normally after hearing the person concerned, except in cases of urgency.
Filiation actions
- Action to claim matrimonial filiation: This is a non-applicable action that corresponds to the father, the mother or the child, and also, with limits, to their heirs, if the child dies.
- Claim of non-matrimonial filiation: The claim of non-matrimonial filiation, in the absence of the respective possession of status, is the responsibility of the child throughout his or her life.
- Action to contest filiation: by the husband, within one year of registration, by the child from the age of majority, or by the wife, in cases of supposition of the birth or if the identity of the child is not certain.
- Mixed action, contesting contradictory filiation: The main action to determine paternity or maternity and another action to contest filiation are brought simultaneously.
At Winkels Abogados we have extensive experience to advise you in this type of procedure, providing you with professional, individualised and tailor-made attention.