Procedural aspects of judicial practice in matters of consanguinity in lineal descent

• Author: Nicolae, I.
• Position: Department of Private Law, Transilvania University of Brasov
• Pages: 129-132

Bulletin of the Transilvania University of Braşov • Vol. 4 (53) •No. 1 - 2011

Series VII: Social Sciences • Law

PROCEDURAL ASPECTS OF

JUDICIAL PRACTICE IN MATTERS OF

CONSANGUINITY IN LINEAL DESCENT

Ioana NICOLAE1

Abstract: There are cases when the filiation of a child born within

marriage is contested. Such an appeal may seek to prove either that both the

child's conception and birth occurred outside marriage, or that his parents

were never married. In this situation, the child cannot benefit from the

presumption of paternity, although some consequences arise. He will usually

benefit from the ascertainment of a single affiliation, to the parent having set

out to determine the lineage to the father, through legal proceedings,

instituted to this purpose (in accordance with Art. 56 and 59 of the Family

Code.)

Key words: consanguinity in lineal descent, presumption of paternity,

filiation to the mother, filiation from the father.

1 Department of Private Law, Transilvania University of Braşov.

According to the Family Code, if, in the

birth certificate, the father's name is

registered as its own declaration, the child

born out of wedlock remains fixed in this

statement, which is worthy, as having been

made under the testimony and with the

assent of the civil service. The action of

removing the child from the legal appearance

of marriage results from the misapplication

or misuse of the paternity presumptions –

stipulated by the art. 53 paragraphs 1 and 2,

and the Family Code – and it is called

paternity action complaint. [1]

The Romanian Civil Code, issued and

approved by the Government, in 1865,

included the so-called legitimate action

(Article 289) under which any interested

person might request, by action or by way

of exception, for the legal presumption of

legitimacy to be removed, in case of the

legal presumption of paternity, unless the

requirements of application were fulfilled.

Like any other parenthood-challenging

action, the action of challenging the

marriage-born child’s paternity cannot be

sued by any interested person, it is

indefeasible and it can be substantiated by

any evidence.

The action of paternity challenging

should not be mistaken for paternity

denial. The first action attempts to prove

that the presumption of paternity, having

been proved during the last action, cannot

be applied if it tends to overthrow the

presumption of paternity because it

corresponds to reality. The presumption of

paternity does not find its application if it

is proved that the child's parents were

never married or that the child was born

either before marriage or after 300 days

since the termination or dissolution of