New dispositions with regard to filiation

• Author: Dan Lupascu - Cristiana Mihaela Craciunescu
• Position: Associated Professor, Ph.D., Law Faculty, 'Nicolae Titulescu' University, Bucharest, judge and president of the Bucharest Court of Appeal - Ph.D., judge and director of the National School of Clerks
• Pages: 174-190

174 Lex ET Scientia. Juridical Series

LESIJ NO. XVIII, VOL. 1/2011

NEW DISPOSITIONS WITH REGARD TO FILIATION

Dan LUPAŞCU*

Cristiana Mihaela CRCIUNESCU**

Abstract

The new Romanian Civil Code1 is a milestone for the profound reform of our judiciary as

regards the matter of private law relationships, on the grounds of valuating the national and

international experience.2 The novelties are represented, mainly, by the review of certain legal

institutions and promotion of new principles and solutions. On this backdrop, the regulation of

family relationships also received a new face.The present task is devoted to highligh ting the

amendments interfered in the matter of filiation, by presenting the systematization method of legal

regulations and the critical analysis of its content.

Key words: filiation, paternity presumption, donor assisted human procreation, possession

of status, legal timeframe of conception

I. Introduction

Filiation, the subject of this paper represents an important landmark to all law systems as it

provides the rules that guarantee the child’s rights to know his/her parents and the duties of all

parents regarding the education and care for their own children.

The new Civil Code reiterates the existing rules but also provides for innovations and

settles the dispositions regarding filiation against the new issues imposed by the evolution of

Romanian society, doctrine and judicial practice. The protection of child’s rights and the best

interest of the child with regard to filiation remain a priority objective of the new regulation.

Considering both the importance and the innovation character of the regulation of filiation

issues, we feel that a systemic approach of the issues is not only necessary but also useful, having

in mind that there are few literary references to this subject.

We undertake to elaborate a general presentation of the new legal norms regarding filiation

both in terms of theory and practice.

II. General aspects regarding filiation

1. Definition of filiation

Filiation is the descendent relationship between a child and his parents.3

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* Associated Professor, Ph.D., Law Faculty, “Nicolae Titulescu” University, Bucharest, judge and president of the

Bucharest Court of Appeal (e-mail: stanciulescu.liviu@gmail.com). This study was supported by CNCSIS –

UEFISCSU, project number PNII – IDEI 860/2009 - cod CNCSIS ID-1094.

** Ph.D., judge and director of the National School of Clerks

1 Adopted by Law 287/2009, published in the Official Journal, Part I, no. 511 of 24 July 2009.

2 Sources of inspiration were mainly the legislation of: France, Italy, Netherlands, Spain and Canada – Province of

Quebec, and also a series of international regulations.

3 Please see: A. Ionaşcu, M. Mureşan, M.N. Costin, V. Ursa –“Filiation and protection of minors”, Editura „Dacia”,

Cluj – Napoca, 1980, page 14.

Dan Lupascu, Cristiana Mihaela Craciunescu

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LESIJ NO. XVIII, VOL. 1/2011

It usually consists of a biological relationship resulted from conception and birth. In some

cases (assisted procreation, donor assisted procreation, unjustified application of the paternity

presumption and wrongful maternal or paternal acknowledgement), filiation does not entail a

biological relation.

2. Filiation reference

The new civil code regulates filiation in chapter II, Second Book, Title III ( art. 408 – 450),

structured in 3 sections, namely: Section 1- establishment of filiation: Section 2 –Donor assisted

procreation; Section 3 – Legal status of children .

III. Establishment of filiation

1. Means for establishing filiation

1.1. General aspects

Acknowledgement of filiation consists of the procedures that attest the legal fact or act

proving the descendent relationship between a child and his parents.

Establishment of filiation is rather different considered the mother’s or the father’s side in

questions.

The new legal norms maintain the existing legal provisions regarding the acknowledgement

of filiation4.

Thus, maternal filiation is the result of giving birth to the child, which applies both to

marriage filiation and to out of wedlock filiation. This means that maternal filiation implies of

proof of the following elements: a) the mother gave birth to the child; b) identity between the born

child and that whose filiation is in question; c) proof of marriage (only in the case of marriage

filiation).

In cases strictly provided for, maternal filiation is established by acknowledgement and

court decision.

As regards parental filiation, it can be results out of application of the presumptions of

paternity. In these cases indivisibility arises in the sense that if maternity filiation is established,

the paternal filiation is not questionable.5

Paternal filiation for the child born out of wedlock is established through acknowledgement

and court decision6.

In order to produce legal effects, filiation must be proven, as prescribed by law. As a rule,

civil status is proven with acts produced by the civil service officers and the civil office certificates

handed to the parties. Thus, proof of filiation is made through the act of birth7 of the respective

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4 Please see Family Code ( Law no. 4/1953) republished in the Official Bulletin no. 13/ 18.04.1956, as

subsequently amended and modified.

5 The attestation of paternity for the child born inside marriage through the paternity presumption is embraced by

all legal systems, as an application of the principle „pater est quem nuptiae demonstrant” (Ingeborg Schwenzer

(editor) – Tensions Between Legal, Biological and Social Conceptions of Parentage, Ed. Intersentia, Antwerpen-

Oxford, 2007, page 5).

6 According to article. 3 of the European Convention of the legal status of children born out of wedlock, Strasbourg,

15th of October 1975, ratified by Romanian through the Law no. 101/1992, published in the Official Monitor, no.

243 /10.09.1992: „ Paternal filiation of all children born out of wedlock may be acknowledged or attested through

voluntary acknowledgment or court decision.

7 In the sense that the birth act represents, by excellence the ultimate proof of birth please see: C. Hamangiu, I.

Rosetti – Blnescu, Al. Bicoianu –Romanian Civil law Treatise, Editura „Academiei”, Colecia „Restitutio”,

Bucureşti, 1997, Vol. I, page. 285.