Parent-Child Legal Relationships

UNIVERSIT DEGLI STUDI DI MILANO
FACOLT DI GIURISPRUDENZA
CORSO DI LAUREA IN
GIURISPRUDENZA
FILIATION
the
LEGAL
PARENT AND CHILD

RELATIONSHIP
ELABORATO FINALE DI : LAURA BUZATU-TEODORESCU

DRITTO DI FAMIGLIA
RELATORE : PROF. VERA TAGLIAFERRI

ANNO ACCADEMICO : 2014/2015
CHAPTER I : TABLE OF CONTENT

CHAPTER I : TABLE OF CONTENT
CHAPTER II :
CHAPTER III
CHAPTER IV
CHAPTER V
CHAPTER VI
CHAPTER II : BIBLIOGRAPHY
http://www.dirittoprivatoinrete.it/azione_di_disconoscimento_della.htm
CHAPTER III : SUMMARY

In this thesis Affiliation The Legal Parent and Child relationship I decided to analyze natural
filiation, lineage that is based on blood relation, which springs from procreation and birth.
The paper is divided into chapters, some of these being divided into sections, subsections and
paragraphs.
In the first chapter entitled General considerations concerning the affiliation institution I have
submitted content and concepts regarding the legal regulations of filiation both in Italy and Romania.
I pointed out that affiliation is blood relationship , a biological connection stemming from
procreation and birth, but also a social institution, a artificial creation which includes social, cultural and
religious elements, which along the time, had put the stamp on the legal solution to the matter.
Parentage, stricto sensu, is the relationship that bond parents to their children, this raport is
immediately, for he unites directely the child to his father and mother. In a more generic meaning, lineage is

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synonymous with descent; it unites successively all people that descent from a joint author; affiliation
depicting as a important element of civil status; which helps to determine the legal personality of a person.
Seen from the child point of view, lineage express a persons quality of being the children of some
parents, while perceived from the parents point of view, indicates the correlative qualities of being a
mother or a father thereof, the maternity and paternity. This relation between mother and father, on the one
hand and child on the other hand, results from the direct fact of procreation, which is not necessary related to
the existence of a family. On the other hand this relation may be the result of an adoption, therof it is the
direct result of a civil agreement. Filiation produces civil effects of fundamental importance, the law must
give the possibility to those concerned to establish the precise relationship between children and parents,
relationship from witch springs both rights and obligations.
As the person was born or conceived during a marriage or out of wedlock the affiliation shall be
within the marriage or out of wedlock. It is a affiliation within the marriage when the birth or, by the case,
the conception of the child took place during the marriage, specifying the fact that it is of no interest the
validity of the legal act of marriage; and we are in the presence of affiliation out of wedlock when wither the
parents were not married at the time of the conception or at the time of the birth either, even if the child was
born with the status of a child born within marriage, his presumed paternal filiation was removed by
irrevocable court order.
In the following chapters we shall provide an analysis on how the maternity and paternity can be
established, depending on whether the child was born within the marriage or out of wedlock.
Therefore, it can distinguish between establishing lineage through :
1. Birth registration procedure
2. Recognition act
3. Court order
4. Presumption of paternity
In the same line, we obeyed to analyzes how the interest person, mother, father, biological father, or
as the case may be, the child, can challenge the current kinship, due to the fact that it does not correspond to
the factual reality.
And not in the end, in the final chapter we had analyzed the principal characteristic of the notion of
name and after will resort to a more comprehensive analysis of how the surname of the child either born
witin a marriage, out of wedlock or of unknown parents, is established.

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CHAPTER IV : GENERAL CONSIDERATIONS CONCERNING THE

AFFILIATION INSTITUTION
SECTION 1.
GENERAL CONSIDERATIONS
Subsection 1 : PRELIMINARY SPECIFICATIONS

Filiation is a form of kinship, being the starting point of it. Beyond the reason related to the reliable
establishment of the childs parents and the protection of his superior interests legal regime of filiation is

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extremely important, being regulated per se in the Civil Code, both in Romania and Italy. Thereof in the
Romanian Civil Code, the provisions regarding the matter of filiation are included in the Chapter II
(Filiation) from Title III (Kinship) of Book 2nd (About family), and in the Italian Civil Code are
included in Title VII (Filiation) from First Book(Of persons and of family )
Subsection 2 : THE BIRTH
Before access to a broader analysis of the institution of filiation, regulated both in Italy and in
Romania, in the Civil Code in force, it is just to start with a brief analysis of the event that leads to the
application of the rules in terms : the birth.
The rule is that, once cutting the umbilical cord, shall appear a new individual on the legal scene. The
child, until then pars viscerum becomes a distinct person.
First of all, are called legal facts, the events to which the law binds certain legal effects. Among the
most important ones is the birth, because from that certain moment, the individual person, has the aptitude
to become the holder of rights and obligations, synthetically with the birth, every individual will acquire
legal capacity.
The law guarantees the right to procreation and recognize the social values of motherhood,
protecting human life from its beginning. From the legal point of view, one of the most interesting profiles
of birth is affiliation.
Subsection 3 : DEFINITION
Filiation, designates stricto sensu, the descent of a person from its parents. Lato sensu, filiation may
be seem as an infinite string of individuals between whom the act of birth established the parent child
relationship. This notion shall apply even to the parentage relationship raised through the act of adoption,
specifying that, in this hypothesis , we can not be in the presence of a biological relationship, by blood,
instead we are in the presence of a civil affiliation, in which, by law, it follows the natural lineage.
Subsection 4 : CLASIFICATION
Filation can be classified at least after two criteria : person to whom filiation is established and the
relationship the persons who conceived and gave birth to the child : married or not married (in the
Romanian law and Italian law, regarding the latter case, is indifferent whether the parents have a stable
relationship, of cohabiting , or had only incidental intimate relationship )
Filiation to the mother and filiation to the father. The filiation to the mother is called maternity, and
the filiation to the father it is called paternity. This distinction is fundamental not only from a biological
point of view, but even from a juridical one. Beyond the famous adage mater simper certa est pater simper
incertus est, the regulations providing the means of establishing the two types of affiliation are different.
Filiation with in the marriage and out of wedlock. Unlike other legal systems which are using
diversified legal terminology to describe the diverse ways of filiation, such as legitimate and natural
filiation, general classification reflected, both in the Romanian and Italian Civil Code is in: the affiliation
within the marriage and filiation out of wedlock, as the child's mother is married or not, at the time of

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conception or on the birth date of the child. Even if before 2012, I.C.C. still used to make the distinction
between legal and natural child, respectively legitimate and natural filiation, after 2012 with the civil code
review, the Italian legislator put the national legislation in accordance with the international treaties, thus
adopting the above specified classification.
Due to this ununiform classification, the European Court of Human Rights in its various case-law
condemns the states which still maintains discrimination between children in relation to the way of birth.
The states having the positive obligation to implement a regulation in accordance with art.9 of the
European Convention on the Legal Status of Children Born out of Wedlock(Strasbourg 1975) which
stipulates that the child born out of wedlock shall have the same rights as the child born with in the
marriage
Precisely to overcome the remaining differences intervened in matters of filiation, most recently was
Leg. No. 154/20131 which eliminated this clear differences between the status of legitimate child and the
status of natural son. This intervention was necessary not only to fully implement the principle of equality
recognized by the Italian Constitution in art.3, but also because the discriminatory concept based on birth,
was sentenced expressly by the Charter of Fundamental Rights of the European Union, which prohibits in
art.21 any form of discrimination based on a person's birth. Also at the international level, in conjunction
with article 8 (right to respect for private and family life) with the article 14 (prohibition of discrimination)
of the European Convention of Human Rights (ECHR) is the foundation of the ban on discrimination
between legitimate children and born out of wedlock, as well as interpreted by the European Court of
Human Rights.2
The case law of the Court states that the protection of private life and family implies full protection
of family relations and under art. 8 ECHR are protect both the relations based on marriage, and those
between parents and biological children. In particular, the Strasbourg Court has ruled that in the name of
respect for family life, is not possible to discriminate between legitimate and natural children. It is the fact
of birth to give rise to a bond between parent (or parents) and the minor.3
The position of the recognized natural child is so similar to that of a legitimate child, and the trend is
to end the differences between legitimate and natural children, so that even in the legislative language Law
no. 219 \ 2012 ordered in art. 1 paragraph 11 that: "In the Italian Civil Code, the words" legitimate children
"and" natural children ", recur everywhere, are replaced by the following:" children, "a standard that will
create problems as it has been formulated.
Therefore, the only criterion for distinction, purely terminological, should be between children born
in marriage and children born outside of marriage (ex. art. 250 cc as amended by L. no. 219 \ 2012).
The purpose of the Law n.219 /2012, which amended several articles of the Civil Code it was to put
an end to the differences in treatment between children, because they may be understood to be a privilege to
be born within a marriage, than those born out.
1
"Revision of the provisions in force concerning filiation" which has implemented L. n. 219/2012
FASANO A.M., MATONE S., I conflitti della responsabilit genitoriale, Milano, 2013, p.217
3
European Court of Human Rights, June 21, 1988 Berrehab v. Netherlands,in www.echr.coe.int. Other judgments that do fall
within the protection afforded by art. 8 also the de facto family: Court Eur. D.U. 26.5.1994; Court Eur. D.U. 13.7.2000 in
www.echr.coe.int
2

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Another important point to be analyze takes in considerations the principle conditions that have to be
meet in order to be in the presence of a child born within a marriage or, respectively out of wedlock.
Therefore, are are children of the marriage the following ones. The children born during the parents
marriage, meaning in the period between the parents entered into the marriage and the date when the
marriage ends or it is dissolute. Likewise, the child born within a void marriage it is considered from the
marriage, because the nullity of marriage does not have any effects on the juridical status of the child. The
second hypothesis it is the one regarding the children conceived during marriage, even if they were born
after the dissolution of the marriage.
The Italian doctrine, makes the distinctions between the following four assumptions : the child was
born during a valid or putative marriage between the parents, the child was born by the married women, the
child is her husband child and, not at least the conception occurred in wedlock.
In the Italian law, for proving the existence of the first two conditions there are no difficulties, but
for the other two direct evidence proves impossible and the law intervenes with its presumptions. The test is
easy for the marriage as well as for maternity for which it is needed only the birth certificate: mater semper
certa est. But, because the pater numquam certus, the law intervenes with a presumption. The famous
presumption of paternity under art. 231 of the I.C.C.: the childs father is simply the mother's husband.
This is a rebuttable presumption, with limited evidence to the contrary: the evidence to the contrary
is allowed only in cases strictly specified in art. 243-bis, I.C.C. through the exercise of action in denial of
paternity.
The other assumption, conception in wedlock,is wrapped in a veil of mystery, because the known
physiological laws do not give us a clear rule about the length of gestation. The legal presumption in this
case, that traditionally presumed to be lawful, in diversity of the other that we just talked about, is
irrebuttable presumption, as regards the child born in the period indicated.
Art. 232 I.C.C. says that it is assumed conceived during the marriage the son born when have not
yet passed 180 days from the celebration of marriage and have not yet passed 300 days from the date of the
cancellation, the dissolution or termination of the onboard effects of civil marriage.
For obvious reasons, the legislature likely goes a step further and equalizes the child conceived in
wedlock with the child born in marriage, though, having been born in the first six months, his conception
was certainly illegitimate. Here, however, there is no absolute attribution of legitimacy, and admits an
opposition by the father or the son, with an action which in this case is called repudiation. The two
presumptions of paternity and legitimacy, intimately linked to each other are inspired by the so-called favor
legittimatis; recognizes a tendency to admit where possible, the legitimacy of the children.
Para.(2) of the same article states that the presumption of paternity is not legitimate during the
expiration of 300 days from the decision of a judicial separation or the approval of separation agreement,
or from the date of the appearance of the spouses before the court, when they have been allowed to live
separately while awaiting the judgment of separation, or dissolution or annulment of marriage. The couple
and their heirs, however, can prove that the child was born after 300 days of the cancellation, or the
dissolution of marriage, but it was conceived during the marriage, so you may prove that the pregnancy was
of longer duration than the norm.

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In any case, the child may propose action to claim the status of legitimate. It is understandable why
the presumption of paternity of the husband does not operate after the expiration of 300 days from the
separation of the spouses: ceasing the obligation of marital fidelity appear incongruous permanence of that
presumption. Upon expiry of the time prescribed by law, which is the normal gestation, the successful birth
of a child, probably, is not attributable to the husband, in that, while surviving the separation of the marriage
bond, or ceases one of the most significant duties, which that of loyalty.
The status of a legitimate child you buy even if its birth is after the death of the husband of the
woman who gave him the light. Art. 232 is presumed conception during marriage, when 300 days have not
elapsed from the date of its dissolution, which occurs, in fact, even for the death of one spouse. Death, while
extinguishing the bond of marriage, can not terminate the state on filiation, although the same is to find, in
this case, a content less wide. The death of his father prior to the birth of the child in fact, precludes any
parental authority, as well as the right to maintenance and education of her, but does not prevent the onset of
certain rights to the name and inheritance rights.
Are children out of wedlock, the children conceived and born outside the marriage, as it follows: the
children conceived and born before the marriage, after the marriage ended or children conceived and born
from parents that had not been married at all.
Per a contrario, the children not born within a marriage, more accurate if the law in subject is not
complied we are in the presence of a children born out of wedlock.
Even in this respect, it is significant that, in term of motherhood, the classification is purely
decorative, because establishing parentage to the mother knows a unified regulation without distinguishing
between the child born within the marriage and the child born out of wedlock. On the contrary, regarding
paternity, classification remains indispensable, the law distinguish between the models of establishing
paternity, depending on whether the child was born within the marriage or pout of wedlock. Indeed the
paternity to the child born in wedlock is established by the presumption of paternity that The mothers
husband is the father (pate rest quem nuptiae demonstrat) while the paternity of the child born out of
wedlock is established wither by voluntary recognition or by court order, in the action to establish
paternity(art. 231 I.C.C. respectively art.414 R.C.C.)
SECTION 2.
FILIATION AND THE LEGAL STATUS OF AN INDIVIDUAL.
It is an indispensable connection between the civil status of a person and affiliation. Practically, the
filiation type, enter the structure of the civil status of a person. In the same time, affiliation it is not only a
biological connection, by blood, but also a legal connection. This is way, in order to produce the effects
provided by law , filiation must be established and proven through the means recognized by the law.
Subsection 1 : PROOF OF FILIATION

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According to art.409 R.C.C parentage is proven by the birth certificate issued in the civil status
Registry and by the birth certificate issued on the basis of it, and in the case of the child from marriage, he
proof is made through the birth certificate and by the parents marriage certificate, listed in the civil status
Registry, and by also by appropriate civil status certificates. The Italian Civil code provides a more succinct
regulation in art.235 ICC stating that the filiation will be proved with the birth certificate registered in the
civil status registry
However, the birth certificate is not the only means of proof of filiation in the Romanian law. When
filiation is challenged or when it comes to the establishment of motherhood or paternity, since it is the case
of legal facts, proof may be brought is by any means.
The birth results from the vital records that are obtained from the offices of each municipality and are
public. The birth certificate is nothing but a document packaged by the officer of the civil status based on the
declaration of birth. The birth certificate formally establishes the parent-child relationship, the title of state,
and shall be the principal means of proof. In its absence, there can be used another means of proof such as,
the possession of state.
In the Italian system, the declaration of birth, which must be made within 10 days from the birth, at
the municipality in whose territory the confinement took place or, alternatively, within three days, at the
health department of the hospital, or nursing home where the birth took place. Is made, without distinction,
by one of the parents, or by a special prosecutor, or the doctor or midwife or other person who was present at
the birth, respecting the possible will of the mother not to be named. In comparison with the Romanian
legislator which provides a longer term, more precisely , the declaration of birth must be made within 15
days from the birth.
Subsection 2: POSSESSION OF STATE

Traditionally , use of civil status" or" possession of state " was defined as the legal status resulting
from the cumulative meeting of three elements : nomen, tractus and fama. Nomen means the
individualization of the person by wearing the name corresponding to the alleged civil status. Tractus
consists in treating, consideration by the appropriate individuals, as the person with the civil status used.
Fama means the recognition, in family and society, as the person with the civil status that he claims.
Ro.Civil Codes integrates in art.410 a definition and the elements of possession of state. Therefore,
possession of state it is defined as the status quo which indicates the lineage links and relationship
between the child and the family to which allegedly belongs. It consists, in principal, in any of the following
circumstances:
a) a person acts toward the child as its own, caring for raising and educating him, and the child
behaves toward this person as his parent;
b) the child is recognized by family, society and, where appropriate, by public authorities, as the
person who is claiming to be his parent;

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c) the child carries the name of the person who is pretending to be his parent.
Para.(2) of the above mentioned article states that : Possession of state must be continuous,
peaceful, public and unequivocal.
The definition includes the traditional elements that the juridical doctrine had identified in the
structure of the possession of state, with the specifying that the enumeration is not limitative.
Effects. As included in the legislation of many other legal systems, the Civil Code regulates the
effects of possession of state in this field. First of all, in the field of the maternity, possession of state that
complies with the birth certificate creates an irrebuttable presumption of existence of that civil state. Thus,
according to art.411 C.Code, no person can claim lineage to another mother than that resulting from his
birth certificate and possession of state consistent with it. Withal, no one can claim parentage to the mother
of the person who has a possession of state consistent with his birth certificate. However, if by a court order
is established that a substitution of child occurred or that it was registered as a mother of a child another
woman than the one who gave birth to the child, it can be proven the true lineages by any means
Correlative, according to art. 421, par.(1) Ro.C.Code, any person may claim, at any time, by action
in justice, affiliation established through a birth certificate which it is not in accordance with the possession
of state.
Second of all, possession of state is a rebuttable and relative presumption, in the sense that the
affiliation proved by it corresponds to reality shows. Along with other means of evidence, presumption
based on the use of civil status may be invoked in an action in establishing maternity or, if necessary, in an
action in establishing paternity outside the marriage. According to par.(2) of art.421 R.C.Code, in case of
contestation of filiation, affiliation is proven by medical certificate of birth, through forensic expertise
establishing parentage or, in the absence of the certificate or in case of impossibility to perform the expertise
by any means, including the possession of state. Therefore, possession of state, is by itself a means of proof
in subject of filiation.
The Italian legislator states in art.236 that in the absence of the birth certificate, the lineage can be
proved trough a continuous possession of state of a legitimate child. Such failure, to provide the birth
certificate, may be due to various causes: destruction of vital records and failure to declare the birth.
Possession of State in its essence has the same foundation of protection of possession which is the
protection of the status quo: this is assumed corresponding to the right until it is proven otherwise. It results
from a set of facts which suggests the relationship of the child with the parent and with family.
The italian doctrine gives the following definition of the components of possession of state. First of
all, the nomen, means that the child must have always carried the name of the parents. The tractus, is
required that the child has received the treatment granted to legitimate children, both from his father and
family; fame, that is the consideration of the child in social relations must have been that enjoyed generally
by any legitimate children.
As seen in art. 410 of the R.C.C. , art. 237 of the I.C.C. offers, more or less the same three
circumstances that have to be meet in order for the possession of state to be legitimate. Thus, according to
art.410 I.C.C. possession of state results from a series of facts which together shows the relationship of

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filiation and kinship between a person and he family to which it claims to belong. Thus it must be taken
into account the follwong facts: that the parents have treated the child as their own; providing him the place
where to stay and education, and not at least maintenance; that the person has been consistently considered
as such in the social life and not at least, that it had been recognized as having that quality by the family.
In the same vein, such regulations stipulated in Romanian legislation can be found in the Italian
legislation. Thus, possession of State is not relevant in the face of a different birth certificate; instead
validates the content if it fulfills the same. Exceptions are provided for the denial of paternity and for the
challenge of motherhood. No one can challenge a state resulting from the compliance of the two elements.
Therefore, those who find themselves in this situation can not claim a different state.
If missing, beyond the birth certificte, proof of filiation may be given by witnesses, also useful in
cases where the child has been placed under a false name or as born of unknown parents. It is necessary,
however, that there is prima facie evidence accepting office in writing - for example, family records - or that
the presumptions and the clues are severe enough to determine the admission of the evidence of witnesses;
in contrary , this test will not be admitted.
Through the possession of state, you can also compensate the absence of the birth of the natural son;
the sufficient demand being the incidence of tractus and fama. The parentage to the child orn out of
wedlock, can be prove by any means.
SECTION 3
RECOGNITION OF FILIATION - ACT OF CIVIL STATUS
Subsection 1 : GENERAL CONCEPTS

Civil status of an individual is based on certain facts or legal acts of civil status. Among the acts
interesting filiation, the most important one is the recognition of filiation. Recognition of filiation represents
the unilateral juridical act which is, at the same time, a civil status act - by which a person declares about
the lineage between her and a child which claimed to be his own. Recognition of filiation can be, a
recognition of maternity or paternity, by case.
Subsection 2: LEGAL NATURE

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Regarding the juridical nature of the act, both in Italy and Romania, it is opportune to frame out that
it has a double legal nature. On one side, it is a means of proof, more precisely a confesion, and on the other
hand it is a legal act, namely a unilateral legal act, consisting in the will of the author, in the sense to
recognize the parent-child relationship between him and a certain child
In the Italian doctrine, there is debate about the legal nature of the recognition because it has doubts
that the nature of negotiations.
It is true that the legislature has given maximum value to the will contained in the act (and this might
suggest the thesis that sees it as a legal transaction), but it is also true that the recognition is irrevocable even
if contained in a will, and what does suggests that the legislature has given the prevalence to the interest of
the child, even against a subsequent will of those who approved them. is certain, however, that recognition is
unilateral legal act, voluntary and non-discretionary.
Subsection 3 : LEGAL CHARACTERS
Recognition of filiation is a civil status act, extra-patrimonial. It is a unilateral legal act, because it is
valid only through the manifestation of will of its author. It is a declarative act, because its object is not the
creation of a new kinship but instead the filiation relationship based on the legal fact of birth or conception
of the child. It is a irrevocable act. The fact that the author of the recognition can claim the recognition
which is not in accordance with the reality does not alterate the irrevocable character of the recognition act,
because we are in the presence of two different situations. Annulment is also a unilateral manifestation of
will, but to the contrary, for the reason to annul the effects of the annulled act and depends only on the will
of its author. Recognition can not be annulled arbitrarily, because it would infringe the principle of
confession, and the civil status of an individual it is on the interest of the entire community and therefore
the legal order of the state itself, which can not be met assigning a false lineage, alleging the existence of a
civil statute based on a lie4. It is a personal act and not at least it is a solemn legal act, which must be drawn
in the forms regulated by law.
Subsection 4: SUBSTANCE CONDITIONS
Forasmuch it is a legal act, the recognition must comply with all the conditions ad validitem
provided by law: capacity, consent, object and cause. Capacity.Even if it is a legal act, it is not binding that
the author of the recognition to have full exercise capacity, therefore it is sufficient to be made by a person
which has judgement. In this sense, art, 417 Ro.C.C. stipulates that unmarried minor can recognize by
himself his child, if he has judgement at the time of the recognition. The consent must be free and
uncorrupted. The cause of the recognition it is constituted by the establishment of the filiation between the
author of the recognition and the child allegedly yours and the object is the very fact of filiation.
Subsection 5: FORM
Being a solemn legal act the law provides all the conditions that the act must meet. Therfore as stated
in art.416, par.(1) R.C.C., the recognition my be made in the following forms:
a) by statement lodged to the civil status service,
b) through authentic document, if so a copy of it is automatically transferred to the competent civil
service, to make the corresponding entry in the civil status registry
4
Suprime Court, Case no.1076/1957,in L.P. no.1/1958, p.191

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c) by will.
In the same manner, the I.C.C. stipulates that the recognition can only be made in the manner
provided by law, in contrary the act is null. Therefore art. 254 I.C.C. regulates the forms of recognition as
it follows:
a) in the birth certificate
b) through a specific statement, after the birth or the conception, in front of a public official
c) in a public act
d) in a will (in this case will take effect from the time of death of the testator if the will was
revoked), whatever the form of this is.
e) Through an action introduced in front of a Guardianship judge.
Once completed, the recognition is irrevocable.
Clearly it makes sense to speak of recognition only to children born outside of marriage and not for
legitimate ones that, as we have seen, they acquire this status automatically when the conditions provided for
by law are meet. The recognition, however, does not occurs automatically, but it is produced only in the
circumstances provided in the Civil Code Articles 250 and following of the ICC and art. 415 and follwoimg
of the R.C.C.
Subsection 6: REGISTRATION
According with art.43 letter a) from L. no 119/1996 regarding the civil status acts, establishment of
filiation through recognition will be registered by reference on the childs birth certificate. The registration
of the reference on the chids birth certificate shall be made ex officio or at the request of the interested, on
the basis of the recognition drafted, in accordance with the law, and is a measure of publicity for
enforceability against third parties.
In the same manner art. 49, letter k of D.P.R. no.396/2000 states that in the birth certificate are
noted the acts of recognition, made in any form.
Subsection 7: CONTESTATION
According to art.420 R.C.C., the recognition that is not in accordance with the reality can be
challenged anytime by any interested person. Surely , there can be situations when, by error or by will, it had
been done a recognition which is not in accordance with the truth. In order to remove this legal kinship and
reestablish the biological truth, the law gives to the one interested the possibility to make the proof in the
contrary, through an action in contestation of the recognition of filiation. In proving the merits of the action
it can be used any proof. Bow task incubates to the applicant.
Nevertheless, art.420, par. (2) of R.C.C., institutes an exception, that reverses the burden of proof,
according to, If the recognition is disputed by the other parent, the child recognized or its descendants, the
proof of parentage is in responsibility of the author of recognition or his heirs.
According to art.43 leter. b) of L.no.119/1996, the contestation will be registered by reference on
the childs birth certificate.

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In the same manner, the italian Civil Code, gives the possibility to the person interested, to introduce
a contestation if the recognition is not in accordance with the status quo.
Subsection 8: ANNULMENT
Due to the fact that the recognition of affiliation is a legal act, if the act is draw without compliance
with the legal provisions, the act will be subject to an absolute or, by case relative annulment.
Absolute nullity. Art. 418 provides the legal framework and stipulates that, the act is absolutely null
if :
a) has been recognized a child whose parentage, established by law, has not been removed.
However, if previous affiliation was removed by court order the recognition is in force
b) was made after the death of the child, and he did not left natural descendants
c) was made in other forms than those provided by law.
Relative nullity. Given the special legal nature of recognition, that borrows the characteristics both
of a legal act, as well as those of a means of proof, it raised the question of whether this category of
unilateral acts is consistent with theory of vices of consent or is an exception to the rule according to which
unilateral legal acts may be null and void if the consent was vitiated. Even if, the reality is that the consent
of the author was vitiated by error, fraud or violence, it must be recognized the possibility to introduce an
action in annulment on the basis of it. The rights of the recognized child, in such a situation will not be
violated due to the fact that, if the recognition is in accordance with the reality, and the author refuses to
draw the recognition act after the admission of the application for annulment, the child has at his disposal
action in establishing filiation.
R.C.C. regulates this solution expressly in art.419 par.(1), which establish that recognition may be
annulled for error, fraud or violence. According with par.(2) The prescription of the right of action starts
from the date at which the violence ends or, where appropriate, the discovery of the error or fraud
Regarding the subject of nullity , it is opportune to make the specification that the Italian Civil Code,
does not include express provisions regarding the above mentioned field. While the Romanian legislator
regulates the cases where the nullity is incident, and the distinction between relative and absolute nullity
providing the field in which the previews rules are applied. The Italian legislator, in art.263 266 provides
more or less, the provisions in matter, without operating a difference or, by case, stipulating expressly the
incidence of absolute or relative nullity.
Therefore, the recognition, whatever its form, can be challenged, as well as defects inherent to it, for
lack of truthfulness, for violence and incapacity that comes from judicial interdiction; the act is invalid,
moreover, was packed in breach of a legal prohibition of recognition. If the reason upon which the appeal
was granted is real, the court order will remove the status of natural son purchased through recognition.
The final judgment upholding the appeal of accreditation, is communicated by the prosecutor's
office, or is notified by the interested parties to the civil officer, which makes the act of annotation in the
birth certificate.
Art.263 stipulates that the recognition may be challenged for lack of truthfulness by the author of
the recognition, by the person who has been recognized, and anyone who is interested. and art 266

DRITTO DI FAMIGLIA
stipulates that the recognition act can be challenged for the incapacity that derives from the judicial
interdiction of the representative
Even if the recognition, once made, is irrevocable. This does not mean, however that it can never be
challenged by the same author of the act of recognition, or by anyone who is interested.
Due to the fact that the I.C.C. regulates in art.265 only the possibility that the recognition can be
challenged only because of violence, we are entitled to affirm that, the Italian legislator does not give the
possibility to the one interested to challenge the act of recognition on the basis of error or fraud, because
what matters is only the truth of recognition, and not the cause that caused it. If, then, there was error or
fraud, but the recognition was true, it will still be valid but if, instead, the presence of visible error, shall be
able to grasp it.
In the doctrine it was raised the question : why did the legislator gave a specific relevance to the
hypothesis of the violence that still can be served to recognize a child "real". In many cases the answer lies
in the fact that violence is an illegal act of the will of the defects and affects the root of the discretionary
recognition. If, then, was not expected to appeal to violence the child would have an easy means, most of the
intent, to achieve its aims, also of a financial nature.
In comparison with the R.C.C., the I.C.C. deals in the same chapter, even with cases of
transmissibility of the right to introduce an action on the basis of existence of violence or lack of
truthfulness. The first question that should be raised is : if it is possible that the action of which we speak
can be transmitted to individuals other than the ones specified in art.263. The Italian doctrine considers that
the answer should be no, because the right to introduce such an action is strictly personal, but faced with the
death of locus standi, you can think about the transmissibility of the action before it has been exercised by
the entitled. In this case we are in the presence of two hypothesis.
First hypothesis regards the possibility to introduce an action on the basis of violence or introduced
by a person who has been put under judicial interdiction (Arts. 265 and 266). In this case, if the author
entitled to introduce the action is dead without having promoted the action, but before the prescription was
incident, the action may be brought by the descendants, ascendants or the heirs.
As regarding the possibility to introduce an action under art. 263 first paragraph, we make the
specification that, if the author of the award is dead without having promoted the action, but before the
expiry of the period of one year (art. 263 paragraph 3 ), his descendants or ascendants are allowed to
exercise the right to introduce the action , within one year after the death of the author of the right or the
birth of the child if it is posthumous child or at the full age of each descendant.
If the child recognized died without having promoted the action, are allowed to exercise it in its
place : the spouse or descendants in the period of one year commencing on the death of their son or when
each descendant reaches full age.
Not least, the death of the author of the recognition or of the child recognized does not prevent the
exercise of the action on their name by those who have an interest, within five years from the date of record
of the recognition in the act of birth.

DRITTO DI FAMIGLIA
Effects. The nullity produces retroactive effects, the relationship of filiation being removed since the
birth of the child.
Subsection 9: FICTIVE RECOGNITION
It is that recognition made by an individual which is aware of the inaccurate nature of the
recognition, in reality the recognized child is not his. It raises the dicution that, when the fictive recognition
was made with knowledge may incur civil liability for damage caused by the author's of the recognition to
the child. Both R.C.C. and I.C.C. does not regulates expressly such a situations, this is way it comes in the
task of jurisprudence, the role to clarify the possible liability of the author.
Subsection 10: ACTIONS IN JUSTICE REGARDING AFFILIATION
Actions regarding filiation are action of civil status, which have as object of civil status, more
precisely, filiation. In the practice it can be found more criteria, on the basis of which can be classified the
court actions on filiation.
Taken into account the two types of filiation we can be in the presence of : action regarding the
filiation to the mother and actions regarding the filiation to the father.
On the basis of their object and finality : state complaint actions and state contestation actions.
Through state complaint actions, aims at getting another civil status than the one which the persona
concerned have. Are part of this category actions in establishing maternity and paternity of the child born
out of wedlock. Likewise, state complaint actions, aims the removal of a civil status, respectively of a
filiation, allegedly false, and replacing it with another, allegedly real. Are part of this category the following
types of actions : action challenging the recognition of lineage, action in nullity of the recognition, action to
challenge paternity of the child born within marriage, action to disclaim paternity, action in challenging the
paternity established by court order.
After the categories of persons entitled to exercise them we distinguish between , action which can
be introduced only by the holders of the civil status or by the legal guardian or by certain individuals
provided by law and it can be continued by the heirs. For example action in establishing the paternity. And
actions that can be introduced by any interested person.

DRITTO DI FAMIGLIA
CHAPTER V: MATERNITY
SECTION 1 :
BASIS OF MATERNITY
Maternity represents the lineage resulting from the fact tthat the child was born from the woman who
is considered the mother of him. The basis of the affiliation to the mother is the simple fact of birth. In this
context, art.408 thesis I. R.C.C. states that affiliation towards mother result from the fact of birth,
without any distinction between children born within the marriage or out of wedlock. Also, in accordance
with art.2 of the European Convention on the Legal Status of Children Born out of Wedlock, ratified
by Romania through L. no. 101/1992, affiliation towords the mother of all the children born out of
wedlock is established through the simple fact of birth.

DRITTO DI FAMIGLIA
This is the fundamental principle of maternity, which is translated in a fundamental right of the
mother and the child to establish lineage, incontestably, immediately after birth, without any discrimination
based on the fact that the mother is married or not.
SECTION 2:
FORMS OF ESTABLISHING MATERNITY
Subsection 1 : ESTABLISHING MATERNITY THROUGH REGISTERING THE CHILDS BIRTH

BIRTH REGISTRATION PROCEDURE
DECLARATION OF BIRTH
Under art.14 par.(1) from L. n. 119/1996, the birth certificate is drawn at the local public service
of persons evidence or, by case, by the officer of civil status of the administrative-teritorial town hall, in
whose jurisdiction occurred the event, based on a statement, drown by the persons reffered to in art.16, on
the basis of the mothers identity card and of the declaration, the medical birth certificate and, if the case, of
the marriage certificate of the parents.
Are required to make the declaration of birth either of parent, and if, for various reasons, they can not
do it , it comes in the obligation of the physician, the persons who were present at birth, or to the health unit
staff where the birth occurred or anyone who has knowledge about the childbirth.
According to art.30, par (1) of the D.P.R. 396/2000 the declaration of birth is made by a parent,
by a special prosecutor, or by the doctor or by the midwife or a person who has witnessed the birth ,
moreover par.(2) of the same art. stipulates that for the purpose of the formation of the birth certificate, the
statement made to the officer shall contain the declaration of birth.
TERM
The birth declaration must be made in the term provided by law, respectively 15 days for the child
born alive and 3 days for the child born dead. When the child died inside the term of 15 days provided by
law, the birth declaration shall be made in 24h from the decease. If this terms were not complied, the law
regulates two situations.
First of all, when the declaration is made within one year from the birth, the birth certificate is drawn
with the approval of the mayor, respectively the head of the diplomatic mission or consular posts.
Second of all, if the declaration was made after one year, the birth certificate shall be made based on
a final and irrevocable court decision, which must contain all information required for the act of birth.

DRITTO DI FAMIGLIA
In the Italian system the declaration must be made within ten days (not 15 as regulated by the
Romanian law), at the municipality in which the birth took place or, alternatively, within three days, at the
direction, hospital or nursing home were the birth took place.
An exception, regarding the second thesis shall be made if the baby was born dead or if he died after
the birth. In this case the declaration must be made exclusively to the registrar of the town where occurred
the birth.
In case of a delay, the registrant must state the reasons of the delay. In this case, the registrar will
draw up a late birth certificate and gives warning to the public prosecutor.
According to art.31 para.(2) if the registrant does not produce the documentation stipulated by law or does
not disclose the reasons for the delay, the declaration of birth can be received only by virtue of a Decree
PROOF OF MATERNITY
Based on the birth registration statement or, if necessary, based on court decision of late registration,
are drawn the birth certificate and the act of birth
According to art.409, par.(1) R.C.C. in conjunction with art.12 from L. no.119/1996, affiliation
shall be proved through the act of birth listed in the civil status registry, and by the birth certificate issued on
the basis of it. It is considered that the act of birth, issued in the basis of the certificate acknowledging the
birth as a proof by excellence of filiation to the mother.
And according to art. 236, ICC affiliation is proven through the birth certificate registered at the
civil status registry.
Subsection 2 : ESTABLISHING MATERNITY THROUGH A RECOGNITION ACT
HYPOTHESIS
According to art.415 par.(1) R.C.C. If the birth was not registered in the civil status register or the
child was listed in the civil status register as born of unknown parents, the mother may recognize the child.
A. THE BIRTH WAS NOT REGISTERED IN THE CIVIL STATUS REGISTRY
Even if the text does not distinguish between the reasons which lead to not making the registration,
taken into account the provisions of L. no. 119/1996 regarding the further drawing of the birth certificate,
results that the recognition can be made in all the situations in which the birth certificate was not registered,
except when the lack of it is the fault of the civil status officer.
B. THE CHILDREN WAS REGISTERED AS BORN FROM UNKNOWN PARENTS

DRITTO DI FAMIGLIA
It regards the child found, which registration falls under art.19 of L. no.119/1996 and the child
abandoned by his mother in the hospital, when the maternity was not established and the registration falls
under art.20 of L. no.119/1996.
The Romanian legal literature show that special circumstances may arise which may pose practical
issues regarding the possibility for the mother to recognize the child.
That been said, the child which has a birth certificate that establishes the maternal lineage, but the
mother but it leaves him and retains the birth certificate, then the child being registered as born of unknown
parents. If, after a while, the mother reappears and shows the birth certificate, there is no question of filiation
to the mother because the affiliation was legally established.
The analysis of the situation reveals that recognition problem arises in cases where the child is found
and recorded as born of unknown parents without his birth to be, previously registered under the law, by
ticking the name of the mother on the birth certificate.
CHILDREN THAT CAN BE RECOGNIZED

Any children born, which falls under art. 415 R.C.C. can be recognized. The child conceived can be
recognized by the mother before the birth, but this recognition will produce effects only if, exceptionally, at
the time of the birth the children situations falls under art.415 R.C.C.
In the same line, it can be recognized even the dead children, if he has descendents. The solution
provided by art.415 par. (3) R.C.C. , is justified by the interest to prevent recognitions based solely on the
opportunity to receive the child inheritance.
Subsection 3 : ESTABLISHING MATERNITY THROUGH A COURT ORDER

HYPOTHESIS
If the mother does not recognize the child which maternity is not established, she has the possibility
to introduce an action in front of a judge.
According to art.422 R.C.C., the action in establishing the filiation towards the mother can be
introduced in the following two cases:
First of all, when, by en reason, the proof of filiation can not be made through the birth certificate. In
conjunction with L. no. 119/1996 it must be stated that this action can be introduced only if the impossibility
to proof the filiation is absolute.
If it's a case where subsequent reconstitution or recovery of the birth certificate, can be made, or if
the conditions to make late registration are meet, it will resort to the procedure provided by art. 57,
respectively art. 17 of L. 119/1996

DRITTO DI FAMIGLIA
Secondly, when the reality of the birth certificate is challenged. Clearly, such an appeal must be possible
under the law. According to art. 421 R.C.C. it can be challenged filiation toward the mother established
through a birth certificate if is not in accordance with the possession of state.
ACTION HOLDERS
The action can be introduced only by the children, having a personal character and it is introduced, in
his name, by his legal guardian under art. 423 R.C.C.
Regarding the right to introduce such an action, we must say that, not only the full exercise capacity
but even the restricted exercise capacity child can introduce the action, by his own, without prior approval.
In the case of the child which did not reached 14 years old, the action can be introduced by the legal
guardian, in his name without prior approval. But, when there is a conflict between the child and the legal
guardian, the action can be indtoduced by a curator named by the court.
According to art.423 par.(2) R.C.C. the children heirs can introduce or continue the action.
IMPRESCRIPTIBILITY
According to art. 423 par.(4) R.C.C. the action is imprescriptible with the minor exceptions that falls
under par.(5) of the same article which states that If, however, the child died before bringing the action, his
heirs may introduce it within one year from the date of death.
THE PERSON AGAINST WHOM THE ACTION STARTS
The action is introduced against the allegedly mother, or if deceased, against her heirs, according to
art. 423, par.(3) R.C.C.
PROOF OF MATERNITY
In proving maternity, the Romanian legislator offers the possibility for the applicant to use any
means, thus a special role is given to the forensic expertise.
SECTION 3 :
CHALLENGING THE MATERNITY
Subsection 1: PRESUMPTION OF FILIATION

According to art. 411 par. (1) R.C.C. No person can claim lineage to another mother than that
resulting from his birth certificate and possession of state consistent with it, and par.(2) states that no
one can deny parentage to the mother of the person who has a state possession consistent with birth
certificate. These legal provisions establish an absolute presumption (iuris et de iure) in the subject.

DRITTO DI FAMIGLIA
This have been said, challenging the maternity can not be possible if there is an accordance between
the affiliation established in the birth certificate and possession of state. Two hypotheses can be identified in
order to challenge the affiliation toward the mother : either there is consistent, but the assumption is not
accurate or, there is no consistency.
The presumption is not in accordance with the biological reality
In principle , this assumption is in accordance with the reality most of the time. Thus, in the spirt of
the case-law created under art.411 par. (3) devote the solution according to which, if by a court order is
established that a substitution of child occurred or that it was registered as a mother of a child another
woman than the one who gave birth to the child, it can be proven the true lineages by any means.
Subsection 2: INAPPLICABILITY
Filliation toward the mother can be challenged any time, when there is no consistency between the
filiation established through the birth certificate and the possession of state, because in this situation the
presumption is not applicable.
The result of the possibility to challenge it results from the interpretation per a contrario of art, 411
R.C.C., also by the content of art.421 R.C.C., according to which any interested person may challenge
anytime, by action in justice, filiation established through a birth certificate which is not consistent with the
possession of state.
Subsection 3: BURDON OF PROOF
According to art. 421 par. (2), when the filiation is challenged on the basis that the birth certificate is
not in accordance with the possession of state, affiliation is proven by medical certificate of birth, through
forensic expertise establishing parentage or, in the absence of the certificate or in case of impossibility to
perform the expertise by any means, including the possession of state. However, par. (3), introduces an
exception, namely : proof of parentage can not be done through the witnesses unless the situation stipulated
in art. 411 para. (3) or when there are documents that are worthy of believe the claims.
Challenging the content of the birth certificate, in which the affiliation is indicated on the basis of an
recognition act, consists in challenging the recognition of maternity, due to the fact that the affiliation is not
in accordance with the truth .
Challenging the maternity established though court order. Due to the fact that between the parties to
the litigation, the court order has the force of res judicata, the only individuals entitled to contest the court
order are the third parties.
CHAPTER VI: PATERNITY

DRITTO DI FAMIGLIA
SECTION 1 :
NOTION AND GROUNDS
Filiation toward the father represent the juridical relationship between the child and the man
considered, by law, his father.
Paternity, from a physiological point of view, results from the fact of conceiving a child by a men.
SECTION 2 :
LEGAL TIME OF CONCEPTION
Subsection 1 : RELEVANCE
The date of conception can not be determined exactly, being hind in the intimate life of the parents.
Thus, date of conception is important, both in the establishment of paternity of the child born within the
marriage or born out of wedlock.
Subsection 2 : NOTION
Due to the fact the date of conception can not be determined exactly, the legislator has regulated a
presumption under which the legal time of conception is determined. Represents a period of time in which
the conception could have took place, period determined by the fact that, from a medical point of view,
outside its limits the conception of the child whose paternity raises discussion could not took place.
This presumption has the nature to facilitate the establishment of the paternity both for the child from
the marriage and the child out of wedlock.
According to art.412 par.(1) R.C.C. the time interval between the three hundred and one hundred
and eightieth day before the child is born is the legal time of conception.. It is calculated daily which means
that the starting date (dies a quo) shall not be taken into account , but the end date (dies ad quem) shall be
taken into account. Therefore, results that, the legal time of conception is of 121 days.
In the same line, art. 232 of the I.C.C. stipulates that it is assumed conceived during marriage a
child born not earlier than one hundred eighty days after the celebration of the marriage and not after 300
days of the dissolution or annulment
Subsection 3 : PROBATIVE FORCE OF THE PRESUMPTION

DRITTO DI FAMIGLIA
According to par.(2) of the same article, the presumption gains a relative character (iuris tantum), in
that by scientific means it can be proven that the child was concepted during a certain period of time inside
the frame provided in par. (1), or even outside this range.
In the Italian doctrine is stated that this presumption is not absolute in the sense that it may be
rebutted, but this should not suggest that the husband must necessarily be considered the father of the child
born in these periods.
SECTION 2 :
PATERNITY OF THE CHILD BORN WITHIN THE MARRIAGE
Subsection 1 : PRESUMPTION OF PATERNITY
DEFINITION
According to art.408 par.(2) R.C.C. affiliation towards the father from the marriage is determined
by the effect of the presumption of paternity. Pater is est quod nuptiae demonstrate, which means that the
father is the one shown by the legal act of marriage. Under art. 414, par.(1) R.C.C. The child born or
conceived during the marriage has as its father the mother's husband.
In the same manner, the I.C.C. stipulated in art.231 that It is assumed that the husband is the
father of the child conceived during the marriage.
Presumption of paternity may be defines as a legal mean to establish paternity, which indicates that
the child father is the mothers husband, from the marriage in which the fact of conception or birth took
place.
GROUNDS
Presumption of paternity has its ground in the simple fact of conception of the child during the
marriage, due to the fact that the biological affiliation towards the father results from the fact of conception.
In this hypothesis , does not matter if the child was born during or after the marriage ended.
So, spouses living together and respecting the obligation of fidelity by the wife are two simple
assumptions underpinning the presumption of paternity of the child conceived during marriage.
However, the presumption of paternity apply even to the child conceived before the marriage, but
born in wedlock. In this case, the presumption has its grounds in the fundamental principle of proecting
the interest of the child and family.
CONDITIONS

DRITTO DI FAMIGLIA
In order for the presumption to be applied, both in the Romanian and Italian legal system, the
following condition shall be meet: establishing filiation to the mother (it is not possible from a juridical
point of view, the establishment of paternity from the child born within the marriage before establishing
maternity), the mothers marriage, the conception or birth took place during the marriage.
If the child was conceived and born during a marriage that afterwards was annulated, the
presumption of paternity is still valid, because nullity f the marriage does not have any effects regarding the
children.
EXCLUSIVE CHARACTER
The paternity of the child born within the marriage can be established only on the basis of the
presumption of paternity. In other words, paternity of the child born within the marriage can not be
established through recognition, neither by court order, ways of establishing paternity exclusive in the case
of the child born out of wedlock.
CONFLICTS OF PATERNITY
Due to the fact the presumption of paternity can have its grounds only on the fact of conception or
birth of the child within the marriage, can be raised conflicts of paternity when a child receives two
paternities from marriage.
First of all, there can be conflicts of paternity in the following hypothesis: if the child was
conceived during one marriage which ended, but was born after the mother remarried or when the husband
was declared dead on the basis of a court order, and after that the wife remarries and the child is born in 300
days and the husband declared dead reappears.
Second of all, it may happen that the wife will give birth to a child meanwhile si is married with
two mans, in violation of legal provisions regulating monogamy.
We consider that the legislator should have inserted in the Civil Code express provisions for
resolving the conflicts of paternity, because currently the Civil Code lack of such provisions.
PRESUMPTIONS OF PATERNITY AND THE MENTIONS ON THE BIRTH CERTIFICATE

The principle is that the presumption of paternity operates independently of the references in the
birth certificate of the child. Regarding this rule, different situations may appear in practice.
The mothers husband was registered in the birth certificate as being the childs father. Aldo, this
reference does not make an conclusive proof of the paternity. There must be verified if the conditions are
meet in the case. Another hypothesis, is the case when a different man is registered as being the childs
father or not t least, the birth certificate does not identify the fathers name. In all the above mentioned cases,
the law offers to the one interested, the possibility to introduce an action in order to put the present situations
in accordance with the reality. Thus, it is undoubtedly that the presumption of paternity shall apply and shall
produce effects independently of the references from the childs birth certificate.
FORCE OF THE PRESUMPTION

DRITTO DI FAMIGLIA
The rule pater is est quem nuptiae demonstart had as its origin the power of an absolute
presumption (iure et de iure). Nowadays, the presumption is not absolute due to the fact that the law
provides the possibility to prove the contrary, in that the mothers husband is not the father. But, even if its
not an absolute presumption, it can not be considered to be am usual relative presumption, taken into
account the fact that the proof in contrary can not be done anytime, anyway and by anyone. It had been
shown that, even if it is universally recognized, the presumption of paternity loses daily its importance, to
the extent that the judicial systems recognize to an increased number of people the right to disavow or, by
case, to challenge the paternity established this way.5
Subsection 2 : ACTION IN DENIAL OF PATERNITY
Paternity of the child born within the marriage can be removed only by an action for denial of
6
paternity.
According to art.414 par.2 R.C.C. Paternity may be denied if it is impossible for mother's
husband to be the father. The law does not include the cases in which the mother's husband may deny
paternity, but only enunciate a general rule, the court will decide on a case by case.
The impossibility for the husband to be the father can be of physical nature, social nature ( for
example the impossibility of cohabiting, due to a deprivation of liberty detentions) or moral nature.
The solely fact of separation during the legal time of conception represents only an indication and
not a plentiful evidence to disprove paternity. In the same line, the fact that the wife had extramarital
relationships during the legal time of conception, is not sufficient to rebut the presumption of paternity.
The proof that the mothers husband is not the father can be made by any means, a special role
being awarded to the forensic expertise.
We have seen that when the child was conceived during the marriage, it is assumed that the
husband of the mother he is the father.
This presumption, however, not even in the Italian legislation, is not absolute and it is possible to
prove the contrary. To do this you need to introduce an action in denial of paternity under art. 235 I.C.C.
We can see that, the Italian System introduces certain conditions that have to be meet in order for
the holders of the action to gain the right to introduce it. Therefore, the action of disavowal is permitted only
in the following cases.
First of all, if the spouses have not lived together in the period between the three hundredth and the
eightieth day before the birth. Second of all, if during the time predicted the husband was suffering from
impotence. And third at all, but not least, if in that period his wife has committed adultery or kept hidden her
pregnancy to her husband and the child's birth.
5
R.Frank, Letablissement et les consequences de la filiation maternelle et paternelle en droit europeen, in Revue de droit compare
no. 1/1999, p.28-30
6
Supreme. Court, civ.s., dec. no. 1501 from 31 December 1968, in C.D.. 1968, p.62

DRITTO DI FAMIGLIA
In the first two cases will be sufficient proof of cohabitation not to get the pronunciation of
repudiation, in the last, that is, in the case of adultery, the proof will be necessarily more rigorous sense that
we must prove that the child has genetic characteristics or blood group incompatible with those of the
alleged father, or try any other fact which excludes paternity.
HOLDERS
Under art. 429 par.(1) R.C.C. An action for denial of paternity can be introduced by the
mother's husband, mother, biological father and the child. It can be introduced or, where appropriate,
continued by their heirs, under the law
In comparison with the art. 243-bis I.C.C. which stipulates that the action in denial of paternity
o the son born within the marriage, can be introduced by the husband, mother or the child who had reached
age of majority.
I.
HUSBAND.
The mothers husband remains the principal holder of the action in denial of paternity, even if he is
not an exclusive holder of the right. Being one of the legal paternity relationship subject, is fully legitimate
in the sense of allowing the solution to deny paternity, knowing that it does not correspond to reality.
According par. (3) of art. 429 R.C.C. if the husband is under interdiction, the action may be
initiated by the guardian, and in lack of it, by a curator appointed by the court.
Prescription. In compliance with art. 430 R.C.C., the prescription term is 3 years. Even if the
action in denial of paternity has a extra-patrimonial character, as an exception to the rule according to these
action are imprescriptible , the solution in the field is justified by the necessity to clarify the situation in a
reasonable time.
The term runs out either from the date on which her husband knew that is the presumed father of the
child, or at a later date, when he learned that the presumption does not correspond with the reality.
As regarding the first hypothesis, in practice, the mothers husband is acquainted with the fact that is
presumed to be the childs father from the date that learned about the birth.
In compliance with par. (2) of art. 430, the term does not run against the husband placed under
judicial interdiction and even if the action was not initiated by the guardian, it can be brought by the husband
within 3 years from the date of lifting the interdiction. Also, under par. (3) of the same art, if the husband
died before the deadline stated in para. (1) without introducing the action, it can be introduced by the heirs
within one year from the date of death.
In accordance with art. 244 I.C.C. the action can be introduced by the husband within one year after
the child's birth, but if he was away at the time of birth on the day of his return to the place where the child
was born or, in any case, if he has not been informed within one year from the day where he heard about it.
The action can not in any case be brought more than five years from the birth of the child (art. 244,
paragraph 4 , I.C.C.)

DRITTO DI FAMIGLIA
If the alleged father died without having promoted the action, but before the expiry of the period
specified in Article 244, are allowed to exercise the action, on their behalf, the descendants or ascendants.
In the event that the term has not yet matured, the new term starts on the death of the alleged father
or the child's birth if it is posthumous child or the coming of age on the part of each of the descendants.
The action is introduced by the mothers husband against the child, and when the child is deceased ,
the action is introduced against the mother and, if case, against other heirs of the child.
II.
MOTHER OF THE CHILD
In the case of the mothers husband , the aim of the in action to disclaim paternity is the remove a
paternity which is not in accordance with the biological reality, while in the case of the mother, the aim is
circumscribed to the interests of the child to remove a paternity that is not real, so that it opens the
possibility of establishing legal paternity of the child to the biological father.
As regarding the prescription terms, we the legislator places the above mention situation under the
same regulations as analyzed in the previews paragraphs.
The solely difference that can be observed is in the subject of the defendant, who in this case, is the
husband. And if the husband is deceased, the action is introduced against his heirs.
In the case of the mother, in the same art. 244, par. (4) of the I.C.C. is stipulated that the action of
denial of paternity can be introduced by the mother within six months from the date of the child's birth or
the day on which it became aware of the impotence of generating the husband at the time of conception and
not later than five years from the birth of the child.
If the mother died without having promoted the action, but before the expiry of the period specified
in Article 244, are allowed to exercise the action on her behalf, the descendants or ascendants.
In the event that the term has not yet matured, the new term starts on the death of the mother, or the
child's birth if it is posthumous child or the coming of age on the part of each of the descendants.
III. THE CHILD
Recognizing the child's right to an action to disclaim paternity is undoubtedly a natural and
necessary solution, claimed by the constitutional principles, and the provisions of international instruments
on human rights and child rights. Thus in the case Gaskin vs. United Kingdome, European Court of Human
Rights determined that the state has the positive obligation to facilitate the child's possibility of knowledge
of his biological family.
Returning to the solution regulated by the national law it must be observed that correctly, the legal
norm provides that the holder of the action is the child, without making any distinction between children
born in wedlock and those conceived during marriage.
According to art.433 par. (1) R.C.C. the action is introduced by the child, during his minority, by his
legal representative. Consequential, if the child does not have full legal capacity, we distinguish between
the following cases. First of all if the child has restricted capacity of exercise, due to the fact that is a
personal extra-patrimonial action, the child can introduce the action by himself. If the child does not have

DRITTO DI FAMIGLIA
capacity of exercise, the action shall be introduced by the mother, in the childs name, as a legal guardian of
him.
If the child dies before the moment when the action could have been introduced, shall be applied the
provisions of art.423 par.(5), which means that the heirs can introduce the action within one year from the
date of the death.
In comparison, the I.C.C. stipulates in art. 244 par. (5) that only the child who had reached the age
of majority can introduce the action in denial of paternity
As regarding the minor child,the disownment can also be promoted by a special guardian appointed
by the court, gathered summary information, upon request of the minor child who has completed their
fourteenth year, or the prosecutor or the other parent, in the case of children aged under fourteen.
We then saw that the child has no limit for bringing the action, while for parents there are time
limits for bringing an action for denial of paternity.
If the child died before having promoted the action in denial of paternity, are allowed to exercise in
his stead the spouse or descendants within a year following the death of the child or the coming of age on
the part of each of the descendants .
The action may also be initiated by a special guardian if the person entitled to introduce the action is
placed under judicial interdiction.
Imprescriptibility. According to art.433 par.(2) R.C.C. the right of action is not prescribed during
the child's life.In accordance with art.433 par.(2) R.C.C., the child can introduce the action against the
husband, and if this one is dead, against his heirs. Moreover, even art. 244 I.C.C. confers the status of an
imprescriptible action.
IV. BIOLOGICAL FATHER
For the first time in the Romanian legislation gives the right to the biological father to introduce the
action in denial ofpaternity. Although to some extent "avant-garde", the action exercised by the bological
father is supported by the same fundamental principle in matters of filiation, namely biological finding the
truth.
Even more concerned, in the case Kroon v Netherlands, which was the main landmark in the
jurisprudence of the ECHR to reform the rules governing Paternity, the Court has recognized not only the
mother but also the biological father's interests and capacity to act in order to remove any false paternity, as
a prior condition in establishing the real paternity.
Art. 432 par.(1) puts in the charge of the biological father an extra special condition. Therefore, the
action is admissible only if he makes proof of his paternity to the child.
In comparison with the first two situations analyzed above, in the case of the biological father, the
action is imprescriptible during the lifetime of the biological father. If he dies, the action may be brought by
his heirs but not later than one year after the date of death.

DRITTO DI FAMIGLIA
According to art.429 par.(5) stipulates that the action shall be introduced against the mothers
husband and the child. If they are deceased, the action shall be introduced against their heirs.
We specify the fact that the Italian legislation does not confer to the biological father the possibility
to introduce an action in denial of paternity.
V.
MINISTRY OF PUBLIC AFFAIRS
The representative of the Ministry of Public Affairs may introduce the action, because under art.92
par.1 of the New Code of Civil Proceedings , it can introduce the action anytime when it is needed in order
to protect the rights and legitimate interests of the minors, persons placed under judicial interdiction and
missing persons. Of course, the one in whose name the MPA introduced the action shall be introduced as
part of the litigation.
DEFENDENT
Under art. 247 I.C.C.
Subsection 2 : ACTION IN CHALLENGING THE FILIATION TOWARD THE FATHER WITHIN

THE MARRIAGE
Distinct from the action in denial of paternity, art. 434 R.C.C. and art. 248 249 I.C.C regulates
the action in challenging the paternity of the child born within the marriage. The two actions distinguish one
from another by the object regulated by each. Meanwhile the action in denial of paternity has as premises
the application of the presumption of paternity, but it tends to tipping it, in that it does not correspond with
the biological reality, through the action in challenging the filiation tends to has as object the removal of the
apparent paternity within the marriage, to prove that the conditions are not meet, for the presumption of
paternity of a child registered in civil status documents as born in wedlock.
The action can be introduced by any person interested and it is imprescriptible, in correlative with
the action in denial of paternity which can be introduced only by certain individuals stipulated by law
(mothers husband, mother, child and the biological father) and not at least in same cases, the action
analyzed above can be prescriptive.
SECTION 2 :
PATERNITY OF THE CHILD BORN OUT OF WEDLOCK

DRITTO DI FAMIGLIA
Subsection 1 : REGULATION
Filiation of the child born out of wedlock toward the father shall be established through recognition
or through court order, under art.408 par.(3) RCC and art.3 from the European Convention on the Legal
Status of Children Born out of Wedlock, ratified by Romania through L. no. 101/1992
Subsection 2 : ESTABLISHING PATERNITY THROUGH RECOGNITION

Recognition of paternity is the legal act (unilateral manifestation of will) by which a man states
that a particular children is his.
According to art.415 par.(2) R.C.C., The child conceived and born out of wedlock can be
recognized by his father.
CHILDREN THAT CAN BE RECOGNIZED
In principle, it can be recognized nay child born out of wedlock. Rule is that, it is recognize the
child born, but the norms admits the fact that it can be recognized in the child conceived, but not born, under
the standstill condition that, at the birth, the child shall have the situation of a child born out of wedlock.
The child deceased can be recognized, but only he has descendents. The solution provided by
art.415 par,(30, is justified by the interest to prevent those recognition made by the father only due to the
interest of him to receive the quality of a heir.
The child recognized may be recognized by another man. In another words, there can be possible
successive recognitions of paternity.
Regarding the possibility to recognize the child born out of wedlock, in the cases of establishing
paternity through a court order. In this case the doctrine states that, due to the fact the court order is
opposable erga omnes , such a recognition is devoid of legal effect until the date on which evidence to the
contrary is made through judicial proceedings, and the paternity established through a court order is
removed, moment at which the recognition will generate effect.
Subsection 2 : ESTABLISHING PATERNITY THROUGH COURT ORDER
The child born out of wedlock may establish filiation by trough a legal action, if the father did not
recognized him. Remarkable is that, the research of paternity is free, that the law does not establish limiting
cases in which such action can be started, the only condition being that, by this action to be established the
paternity of a child born out of wedlock.
Thus, according to art. 424 R.C.C. if the father out of wedlock does not recognize the child, the
paternity shall be established through a court order.
HOLDERS

DRITTO DI FAMIGLIA
Has a personal character and shall be introduced, if the case, by the child.
According to art 425, par (1) R.C.C the action to establish paternity outside marriage is introduced
in the name of the child by the mother, even if she is a minor, or by his legal representatives. We specify the
fact that the mother is not the holder of the action, she only acts in the name and the interests of the child.
If the child does not have full legal capacity, we distinguish between the following cases. First of all
if the child has restricted capacity of exercise, due to the fact that is a personal extra-patrimonial action, the
child can introduce the action by himself. If the child does not have capacity of exercise, the action shall be
introduced by the mother, in the childs name, as a legal guardian of him.
According to art. 425 par. (2) the action can be introduced or, where appropriate, continued by the
child heirs, under the law.
The father outside the marriage can not introduce such an action because he has the possibility to
recognize the child.
IMPRESCRIPTIBILITY
In accordance with the European Court of Human Rights case-law in the field, establishment of the
inalienable character of this action was a legitimate option, fully justified, which gave expression to the
superior interests of the child principle and its fundamental right to know his parents, enshrined in Article 7
pt. 1 of the Convention on the childs rights, ratified by Romanian through Law no.18/1990.
The solution of inalienability was taken by the Civil Code in art. 427 par.(1), in that the right to
introduce an action does not prescribe during the lifetime f the child. Thus, if the child deceased, in
application of art. 427 par.(2), which send to art. 423 par.(5) the action can be introduced by his heirs in one
year time, from the date of his death.
DEFENDANT
The action is introduced against the alleged father or against his heirs if this one is deceased.
OBJECT
Through the action in establishing paternity the applicant follows to prove that the defendant is th
childs father. this means that the following circumstances must be proved. First of all, the birth of the child.
Second of all, the intimate relationship between the alleged father and the childs mother during the legal
period of conception. In this case, shall be applied the presumption of the legal time of conception.
Third of all, the fact that the man who had such relationship with the mother is indeed the childs
father. the fact that, during the child conception, the mother had multiple relationships (exception plurium
concubentium) is not sufficient in order to overrule the action, if the proofs can lead to the presumption of
paternity. This exception can not lead to an overruling of the action as inadmissible, but instead shall be
administered all the proofs in order to establish the real kinship. In lack of other proofs, the court can not
admit such an action, because if so, it would lead to the possibility of the mother to choose the childs father.
MEANS OF PROOF.

DRITTO DI FAMIGLIA
The paternity can be proved by using any means.

Art. 426 par (1) R.C.C. establishes a relative presumption of paternity in the favor of the allegedly
father who lived together with the childs mother during the legal time of conception., the assumption can be
removed if the alleged father proves that it is not possible to be the father.
Another proofs that serves in the investigation can be the recognition by the defendant or the
forensic expertise.

DRITTO DI FAMIGLIA
CHAPTER VII: ITALIAN LEGISLATION

RECOGNITION OF THE CHILD
BY THE
MOTHER or FATHER
First of all, in the same manner like in the other European legal systems, pursuant to art. 30 par.(3)
of the Constitution, the law ensures to children born outside of marriage full legal and social protection,
compatible with the rights of members of the legitimate family.
Due to the fact that there is a slightly difference between the format in which the Romanian and
Italian legislator finds adequate to regulate the institution of recognition, we find opportune to provide a
separate analyzes of the regulations founded in the Italian law. Surely, even if structurally the analysis shall
be provided in a different chapter, the content will be subjected to a comparative analysis, highlighting the
main differences between the two systems.
While the Romanian legislator gives narrow regulation in the matter, the Italian legislator, trough
Chapter IV of the Civil Code, gives a wide range of provisions with regard the subject of the filiation of the
child born out of wedlock.
As seen in the above analyzed chapters, the Romanian legislator gives separate provisions in the
field of lineage to the mother and father. Moreover regulates the possibility of the mother to establish
maternity only in certain cases, stipulated by the law, through recognition. Thus, the first fundamental
difference is that the Italian Civil Code provides that the son born out of wedlock can be recognized by
both mother and father, although already united in marriage with another person at the time of conception,
without any limitation in this regard.
The term filiation of the child born out of wedlock, indicates the generation occurred in nondouble, both due to occasional sexual relationship or a permanent cohabitation. The simple fact of birth by
unmarried parents do not automatically assigns the status of a child born out of wedlock.
For the acquisition of this status, the law requires or a formal act of recognition, or a judicial
declaration of paternity or maternity. Frequently, there is recognition, since the act of birth, by the mother if
the parents are not married, it is usually the mother to declare the birth, and the child assumes the surname.
However, the mother may not recognize the child at birth, so that the same will be registered in the
civil status registers, as born of parents not known or that you do not want to declare; in this case is the
registrar to impose the name; the child will be admitted to an institution pending the adoption of the
necessary acts. In this case we will face to a possible future recognition by the father or even by the mother,
or both of them jointly.

DRITTO DI FAMIGLIA
The Italian doctrine defines recognition, almost in the same manner, thus the recognition is an act
by which the natural children (now children born outside of marriage) can be recognized by the mother or
father or both, separately or jointly, although already united in marriage with another person. The
recognition institution was recently reformed with the introduction of the Law n. 219/2012 which has
essentially equated the status of all the children. Following the Legislative Decree no. 154/2013,
implementing Law n. 219/2012, this equation has become almost complete: there will be no natural children
and legitimate children but children born in wedlock and out of wedlock.
In the same direction, both Romanian and Italian legislation were brought into line with the
international instruments in the field.
Clearly it makes sense to speak of recognition only to children born outside of marriage and not for
the ones born within the marriage, as we have seen, they acquire this status automatically when the
conditions provided for by law are meet. The recognition, however, do not occurs automatically, by it
produces effects only by fulfillment of the conditions provided in art.250 I.C.C.
The recognition is the formal act by which a person certifies to be the father or mother of a given
child, born outside of marriage. This act, which certifies a certain situation, has retroactive effect from the
time of the child's birth. The natural parents certainly have a moral obligation to recognize the natural son,
moreover a legal obligation.
The natural son, however, has the right to obtain in the absence of recognition, the judicial
declaration of paternity or maternity natural.
The recognition, is a spontaneous act of private autonomy, is not amenable to conditions or terms;
therefore, every provision purporting to limit the effects of recognition is void. The recognition has not only
the character of voluntariness, but also that of irrevocability, once issued the statement of recognition, the
result is the assertion of the child kinship, subject to the possibility of appeal only in cases allowed by law
and except in cases where it is necessary consent or approval, as required by Article 250.
The recognition is a unilateral declaration minutely regulated by law, which, among other things,
the act conceived not as free-form, but as an act that must be packaged in the form specified in art. 254
I.C.C. The nature of unilateral act does not apply in cases where it is required consent of third parties, which
only reflects the effectiveness of the recognition.
The paragraph (2) of Article 250 I.C.C, in fact, states that the recognition of his son, who has
turned 14 years, has no effect without his consent, and the third paragraph of that article provides that the
recognition of the child, who has not completed 14 years, can not take place without the consent of the other
parent who has already made the recognition.
In the latter case, the consent can not be refused, if the recognition is in the interest of the child. If
there is opposition, the court shall decide and the court order takes the place of the missing consent.
Parents can also recognize incestuous children (art. 251 I.C.C.), but only with the consent of the
judge and having regard to the interest of the child and the need to avoid him any injury.

DRITTO DI FAMIGLIA
The case-law, emphasized that the right of paternity or maternity compared to a minor is a primary
right of personality, notes that it can be eliminated only in the presence of serious and reasonable grounds,
that reveal the endangered balance, emotional and psychological of the child.
In both legislative system, the recognition can also relate to a subject of an unborn child, but
conceived. In this hypothesis, the effects of recognition, which will start from birth, postulate that the
unborn is born alive. The father is admitted to the recognition in the absence of maternal recognition, in
which case it is necessary to mention the woman, so it appears possible the identification of the unborn.
There is no doubt the interest of his father to a timely recognition, and identification of the mother, being
only necessary to ensure the identification of the unborn child.
The Italian legislator, puts on a high pedestal the higher interests of the child. In doing that it was
decided that the recognition is inadmissible if there is a contradiction in the cases where the higher interest
of the child are not protected.
For this reasons it was decide, first of all, the inadmissibility of recognition towards those who
already have the status of a legitimate child or legitimized (art. 253 I.C.C.). Second of all if the child
reached the age of 14, it is needed his consent. In lack of the consent, the act of recognition is void. And not
at least, the Civil Code stipulated that the consent of the other parent (who had already approved) can not be
rejected if it is in the interest of the child to remain in force.
This last point is very delicate; there is, in fact, a parent who is opposed to the subsequent
recognition that wants to make the other parent. It is easy to imagine how the reasons for this opposition can
not be dictated by the protection of the interest of the child, but on grounds of resentment of the parent who
has already made the recognition towards the other.
For this reason, if a parent intends to still recognize the child, despite the opposition of the other,
will have to resort to the procedure provided for in paragraph 4 of Art. 250 I.C.C. If we are in the
presence of a refusal to consent the recognition, the parent who wants to recognize the child, will have to
resort to the competent court.
In the application, the parent who was refused consent, supposedly will highlight the irrationality
of the refusal of consent, and how, on the contrary its recognition is beneficial to the interest of the child.
Now throughout the course of the procedure depends on the attitude of the other parent, who may oppose, or
not to appeal that has been notified.

DRITTO DI FAMIGLIA
CHAPTER VIII : ITALIAN LEGISLATION

AFFILIATION ESTABLISHED BY COURT ORDER
MATERNITY or PTERNITY7
We will analyze how can be establish the paternity and maternity trough a court order in a separate
chapter, because the Italian legislature confers a distinct chapter in this matter, in comparison with the
Romanian legislator. First we mention that the Italian Civil Code does not provide separate settlements,
depending on the subject of the action, but on the contrary regulates the ways of establish parentage both to
the mother and father in the same articles.
That being said, the procedure to establish maternity and paternity trough a court order, is regulated
in Chaper V of the Civil Code, intitulated Of judicial declaration of paternity and maternity.
Definition.The judicial declaration of paternity and maternity is the legal instrument by which the
child born out of wedlock can obtain the status of natural child regardless of an act of the will of the father
or mother.
Is a contentious legal action with which you want to get a judicial decision which has the effect of
recognition. We have seen that the recognition is an act of discretionary nature, but it is also true that this
discretion should not be a means to escape their duties as a parent. For this reason the Civil Code allows, the
child, to actins order to recognize his status.
In fact, if the natural son was not recognized by one of the parents, or both, the child can still get the
verification of his status as a natural child by initiating the legal proceedings in order to obtain a judgment
declaring the affiliation.
Action holder. According to art.270 I.C.C. the person entitled to introduce the action is the alleged
child, as long as he lives. Due to the fact that we face a personal action, no one can act in his place. If the
person who introduces the action is the child we are in the presence of an impresciptible action.
Obviously, the action may be brought, in the interest of the child, by the parent who exercises
parental authority or the guardian. The guardian, however, must request permission from the judge.
But, if the alleged son dies, the action may be introduced by the descendants, within two years after
his death.
Defendant. The action is exerted against the alleged parents, or if the alleged parents are dead, the
action shall be started against their heirs.
http://www.dirittoprivatoinrete.it/dichiarazione_giudiziale_di_pate.htm
http://www.professionisti.it/enciclopedia/voce/172/Dichiarazione-giudiziale-di-paternita-e-maternita

DRITTO DI FAMIGLIA
Admissibility of the action. According to art. 274 of the I.C.C. the action must be admitted at the
outset by the court only when concur specific circumstances that make it appear justified. In other words, the
court will have to determine in advance the likelihood of success of the action (prima facie case) before the
start of the procedure itself. It is not permissible in any case the requested action outside of the cases in
which recognition is admitted (art. 269 I.C.C.)
Proofs. Proof of maternity and paternity may be given by any means. But as proof of maternity is
more easier, as you just need to prove the identity of the one who pretends to be a child born from that
woman. Thee paternity test is more complex though, there are needed to bed used, for example, eligible
DNA probes to which, however, you can not force the alleged parent to give.
Even if, the law states that, proof of maternity and paternity may be given by any means, it is
important to specify that, the solely statement of the mother, in which she indicates the alleged father, is
insufficient in order to establish the affiliation.
Effects. According to art.277 I.C.C. the judgement declaring the filiaton has the same effects of
recognition.
CHAPTER IX : THE NAME

SECTION 1: DEFINITION

DRITTO DI FAMIGLIA
The name places a person in the universe. The name lato sensu is a mean of individualization which
consists in a number of words in order to appoint a person. In this sense, the word name designates both
surname and first name.
Regardless of the perception or definition founded in various legal systems, it must be pointed out
the fact that the meaning is the same. For example in the definition of Gh. Beleiu, the name is that
attribute of identifying individuals which consist in the right of a person to be individualized in the family
and in society, through words, established under the law, for this purpose.8Another definition states that the
name is a Appellation which serves to identify a person in the social and legal life9
Shakespeare in Romeo and Juliet questioned the significance of the name in the following terms:
What exists in a name? What is is called a rose, under another name would have the same perfume.
Stricto sensu, the word name designates only the surname.
It can be said that The name is the vocable which serves to designate a person. Surname (or family
name) : element of the name assigned under filiation, is worn by members of the same family 10.
SECTION 2: REGLEMENTATION
As the basis of Italian law and Romanian law are standing on the foundation of the Roman law and
furthermore it was developed on the model of the Iustinian Code, the both countries have similar provisions
regarding the above mentioned institution, with fine particularities which shall be subjected to an analysis in
the following.
Although, the subject of the present thesis is Affiliation, we found opportune to draw a brief
overview of the general concept of name and the general provisions incorporated both in the legislations
of the two countries, as well as international regulations, before submitting to analyze the provisions
regulating the name of the child from the marriage and respectively, the name of the child out of
wedlock provided in the institution of Affiliation, both in the Italian and Romanian Civile Code.
International instruments. Both Italy and Romania, ratified the various international treaties,
drawed up in order to implement a universal system of protection of human rights. It is in the responsibility
of each state to ensure the implementation of the provisions incorporated in the international instruments in
accordance with their national law. On the basis of international principles, every ratifying state had the
obligation to put their legislation in accordance with the following international treaties in the field. In 1959,
the United Nations General Assembly adopted the Declaration of the Rights of the Child. It marked the
first major international consensus on the fundamental principles of childrens rights. One of the ten
Gh. BELEIU, Civil law. Introduction in civil law. Civil lae subjects, 10thed. revised and annotated by M.Nicolae and P.Trusca,
Ed. Universul Juridic, Bucharest,2006, pag. 342
9
G.MARTY,P.RAYNAUD, Les personnes, 3ed ed, Paris, Ed. Direy 1976, pag.671
10
Lexique de terms juridiques, 12-e edition, Dalloz, 1999, p.356

DRITTO DI FAMIGLIA
principles dawn by the Declaration was the child right to a name. Followed by the Convention on the
Rights of the Child, adopted by the General Assembly in 1989, which restates the same principle in art.711.
National legislation. As stated out in the previous paragraphs every person has the right to a name.
Given that the subject of the present thesis is based on a comparative analysis, in the following subparagraph
we shall provide a canvass based on the provisions incorporated in the two countries Civil Codes.
Italian Civil Code
Art. 6
Right to a name.
Every person has the right to a name that is
assigned by law.
In the name will include the first name and surname.
Romanian Civil Code

Art.82 Right to a name
Every person has the right to a name established or
acquired under the law.
Art.83. Structure of the name
The name will include the first name and the
surname
The legislative power of the both countries adopted the same position, regarding the protection of the
right to a name. With specification that in the Italian legislation it is considered to be a constitutional right,
stipulated in art. 22 of the Constitution, and thus strengthening the protection of it.
We conclude that in both Romania and Italy the right to a name is protected by the national
legislation and the principal act regulating this right is the Civil Code.
SECTION 3: THE SURNAME

According to the law, we must distinguish between three hypothesis of establishing the surname,
depending on the legal status of the child at birth. Each status quo is regulated distinctly. First, the name of
the child born within the marriage, secondly, the name of the child born out of wedlock and thirdly the name
of the child born of unknown parents.
Subsection 1 : DETERMINATION OF THE SURNAME OF THE CHILD BORN WITHIN THE
MARRIAGE
For this hypothesis, sometimes called legal affiliation, shall apply two major rules :
The first rule. The children of the marriage shall take the common surname of their parents, if they
have such a surname. In this respect, art.449 par. (1) Ro. Civil Code stipulates that : The child of the
marriage shall take the common surname of his parents. We specify the fact that the legal provision cited
above is imperative, so that the child is obliged to take this name. This is the most common situation
encountered in practice.
The second rule. The art. 449, par(2) Ro.Civil Code stipulates that If the parents do not have a
common surname, the child shall take the surname of one of them or their names combined. In this case, the
child name will be determined by parental consent and shall be declared, once with the birth of the child at
11
Art.7 para (1) the child shall be registered immediately after birth and shall have the right from birth to a name[]

DRITTO DI FAMIGLIA
the civil service. The agreement between the two parents regarding the child name have to be submitted in
writing and be signed by both parents.
Per a contrario if the parents can not agree on the surname of the child art.449, par.(3) Ro. Civile
Code stipulates that in the absence of parental consent, guardianship court shall decide and communicate
the final decision to the civil service where the birth was recorded.
It is necessary to underline the fact that there are no other possibilities for establishing the surname
of a child bordn within a marriage besides the ones provided by law, neither for parents nor fo the
guardianship court. Furthermore, in the silence of the law it is possible that the mothers surname precede
fathers name and vice versa. It is also possible that, in case of successive children from the same marriage,
to be set different surnames. In the Romanian doctrine was underlined by different authors, such as Gh.
Beliu that such a situation is not recommended.
As regarding the Italian system, we have to submit to a broader analysis of the way in which the
surname is established.
Nowadays, after several legislative changes which happened most recently, we are entitled to state
that the provisions in the matter are similar, if not identical to those founded in the Romanian legislation.
The Italian Civil Code, not even after the review through L. no.154/2013, did not ensured a
exclusive article regulating the rules that should apply in order to establish the name of a child born within a
marriage. Thus there were no express regulations in the matter, the rule was that the child will born within
the marriage will get the name of the father.
In 2014, the legislative power wanted to change through a 7 item text the existing civil law in
matters of attribution of surnames to their children. Specifically, in relation to the recent case law of the
European Court of Human Rights, the national law was putted in accordance with it by providing the
possibility of attributing the mother surname to the child.
The first article of the draft, which recently was approved, introduces in the Civil Code art. 143quater, entitled "last name of the child born in wedlock ", establishing that by agreement of the parents, the
surname attributed to the child at the time of the declaration of birth at the offices of state can be : the
surname of the father, the surname of the mother or the surname of both, in the order agreed.
If the parents do not agree in which surname to give or, in which order the surname of both parents
shall be, the child will receive the surname of the both parents in alphabetical order.
Subsection 1 : DETERMINATION OF THE SURNAME OF THE CHILD BORN OUT OF

WEDLOCK
Unlike the child from the marriage which pertains to a determined couple, the child born out of
wedlock (called in a exceeded terminology, natural child) is in a individual relationship with each parent12
12
O.UNGUREANU, C.MUNTEANU, Civil law.Persons , 2nd ed reviewed and annotated, ed. Hamangiu, Buchares, 2013, p.196

DRITTO DI FAMIGLIA
Art. 450 par.(1) of Ro.Civil Code states that The child out of wedlock takes the surname of the
parent to which affiliation was first established, and art.450 par.(3) Ro. Civil Code provide that if the child
has established affiliation simultaneously to both parents, shall properly apply the provisions of art.449
para.(2) and (3), discussed in the previous subparagraph.
Thus, it can be seen that we are in the presence of two rules that takes in account the manner of
establishing affiliation regarding both of the parents : successively or simultaneously.
First rule, is based on the chronological order, therefore the child takes the name of the parent to
which the affiliation is established at first. Art. 450 par.(2) Ro. Civil Code provides the legal framework,
which regulates the situation in which filiation is established subsequently to the other parent. Therefore if
parentage has been established subsequently to the oter parent, the child, through parental consent, may
take the surname of the parent to whom subsequently established affiliation or the surnames combined. The
new family name of the child shall be declared by the parents together, at the civil service where the birth
has been registered. In the absence of parental conset it shall apply the provisions of art. 449 para.(3). So,
in this hypothesis only the guardianship court is competent ratione materie to approve the modification of
the childs name.
Second rule, settles that, if the affiliation is established simultaneously to both parents, shall
properly apply the provisions of art.449 par. (2) and (3); which means that the parents will establish with one
consent if the name of the child will be the surname of one of them, or the combined family name. Per a
contrario the name will be established by the guardianship court.
In the end, it is opportune to specify that, if one of the parents changes the his or her name after the
birth of the child, the child is entitled to have only the surname had by the parent at the moment of his birth.
According to art.262, par(1) ICC, the child takes the surname of the parent who first recognized
him. If the affiliation was made simultaneously by both parents the child assumes the surname of the father.
(past regulation)
If the affiliation to the father is established or recognized subsequently to the recognition by the
mother, the child can add the fathers surname or replace the mother surname with the family name of his
father.
If the affiliation to the parents is established or recognized subsequently to the establishment of the
name by the office of civil service, it shall apply the first and second paragraphs of this article; the child
may keep the surname previously awarded, if that name has become autonomous sign or his personal
identity, adding or replacing the surname of the first parent who has recognized him or the family name of
the both parents if he had been recognized by both
In the case of the underage child, the court decides about giving to the child the surname of the
parent, after listening to the minor child, who has reached the age of twelve or if under , he had judgement.
After the several legislative changes in the matter, the legislator end up to the following solution. If
the child is simultaneously recognized by both parents, shall apply the rules under the new art. 143-c for the
child of married parents.

DRITTO DI FAMIGLIA
If the child is recognized by one parent at first, the child shall assume his surname. Where
recognition by the other parent, happens subsequently, whether voluntarily or on the basis of a court order,
the name of the subsequent parent is added to the surname of the first parent who has recognized the child
only with the consent of the parent who has recognized the child first. Moreover, if the child has turned 14,
the child himself has to give his consent in the matter.
Another provision that shall enter into force is regarding the case when the child is recognized by
both parents and the parents have two surname. In this case, the parents can transmit only one surname on
the choice.
Subsection 1 : DETERMINATION OF THE SURNAME OF THE CHILD FOUND FROM

UNKNOWN PARENTS
If the lineage is not set out to any of the parents, than there remains no choise but to set out the name
through administrative proceedings. It is the hypothesis of the child found [art.2 par.(3) G.O. no. 41/2003],
born from unknown parents [art.20, par.(2) L. no.119/1996] the child abandoned by his mother in the
hospital, regulated in art. 84 par.(3) Civil Code.
In the above mentioned cases the surname and the first name of the child shall be established through
a administrative act sign by the mayor of the town in which the birth is recored.
We specify the fact that the legislation does not stipulate a way of establishing the name by the
administrative authority, so in the silence of the law, the discretionary power of this authority is large.
Surely, gven that the law identifies him and recognizes his dignity as to any other child, we consider that the
child shall not be subject to a pure imaginary name.
In the Italian Legislation, the situation of attributing a surname and by case name, to a child from
unknown parents is regulated by the DPR no. 396/2000. Therefore art. 38 of the above mentioned Law
stipulates that, he, who finds an abandoned child shall take him to a special institution or a nursing home.
The director of the facility shall immediately notify to the office of civil service, the city in which the child
was discovered.
The office of civil service draws the minute in which registers the apparent age and sex of the child,
as resulting from the communication received and not in the and gives to the child a name and a surname,
informing immediately the guardianship judge and the Juvenile Court
The civil status service establishes the childs name and surname. The law provides that it is banned
for the authority to chose a name that reveals natural origin or names of celebrities or famous families in the
place (art. 34 3 in correlation with art. 29 3 of DPR 396/2000 )
As we can remark from the analysis, the solely difference between the two system, in regard to this
matters, falls only in the fact that there are distinct authority which have the competence to establish the
surname of the child. Thus the competence of assigning the name is given to different authorities, it should
be taken into account that, even so, both of them are found in the public service field, being public
authorities of the state.

DRITTO DI FAMIGLIA

Parent-Child Legal Relationships

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UNIVERSIT DEGLI STUDI DI MILANO

PARENT AND CHILD

ELABORATO FINALE DI : LAURA BUZATU-TEODORESCU

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RELATORE : PROF. VERA TAGLIAFERRI

CHAPTER I : TABLE OF CONTENT

CHAPTER III : SUMMARY

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CHAPTER IV : GENERAL CONSIDERATIONS CONCERNING THE

Subsection 1 : PRELIMINARY SPECIFICATIONS

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Subsection 2: POSSESSION OF STATE

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Subsection 1 : GENERAL CONCEPTS

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Suprime Court, Case no.1076/1957,in L.P. no.1/1958, p.191

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Subsection 1 : ESTABLISHING MATERNITY THROUGH REGISTERING THE CHILDS BIRTH

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Subsection 2 : ESTABLISHING MATERNITY THROUGH A RECOGNITION ACT

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CHILDREN THAT CAN BE RECOGNIZED

Subsection 3 : ESTABLISHING MATERNITY THROUGH A COURT ORDER

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Subsection 1: PRESUMPTION OF FILIATION

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CHAPTER VI: PATERNITY

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Subsection 3 : PROBATIVE FORCE OF THE PRESUMPTION

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Subsection 1 : PRESUMPTION OF PATERNITY

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PRESUMPTIONS OF PATERNITY AND THE MENTIONS ON THE BIRTH CERTIFICATE

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MOTHER OF THE CHILD

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MINISTRY OF PUBLIC AFFAIRS

Subsection 2 : ACTION IN CHALLENGING THE FILIATION TOWARD THE FATHER WITHIN

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Subsection 2 : ESTABLISHING PATERNITY THROUGH RECOGNITION

Subsection 2 : ESTABLISHING PATERNITY THROUGH COURT ORDER

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The paternity can be proved by using any means.

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CHAPTER VII: ITALIAN LEGISLATION

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