Considerations on the recognition of non-marital affiliation after birth registration

In the following lines we will address some very relevant issues that have caused a few headaches in the field of family law. This article is divided into two sections. Firstly, we will focus our attention on the recognition of non-marital filiation after birth registration and, subsequently, I will refer, succinctly, to the consequences resulting from the registration of the new-born child with an impact on parental authority, the order of surnames and the choice of name.

Recognition of non-marital filiation after birth registration

A woman who has had a child and does not know the identity of the father can be registered as a single mother who does not know the identity of the father. However, even if the mother does not want the father to be recognised as such in the Register, if the father wants to be recognised, he will ultimately be recognised as such. It should be noted that this is not a short process.

The recognition of non-marital filiation after the birth registration can be made at any time in accordance with the forms established in the applicable civil legislation. If it is made by declaration of the father before the register office, the express consent of the mother and of the legal representative if he is a minor or of the person to be recognised if he is an adult is required. In order for registration to be possible, the requirements for the validity or effectiveness of the recognition required by civil law must also be met. The mother in question could ignore the request of the Register, but if the father wants to assert his right to be able to prove that he is indeed the father of the minor, he will have to file a lawsuit before the Courts of First Instance where he will have to request that he be summoned to the Institute of Forensic Medicine to undergo a paternity test.

In other words, yes, he can be named a posteriori, as long as the father goes through the judicial process. He should undergo a paternity test, but in order to do so, he would first have to provide reliable evidence to process the claim, for example, WhatsApp messages, photos, witnesses, etc.

Consequences of registering the new-born child

If this situation occurs, once it has been determined that the offspring is the child of the respondent, the latter must exercise all the parental and filial duties that the law requires: parental authority, alimony, visiting rights, legal representation, care and protection, etc., without any distinction with respect to other children of the respondent. Without any distinction whatsoever with respect to other children he/she may have. Likewise, the child born out of wedlock will also be the beneficiary, under the same conditions as his or her siblings (if any), of the distribution of the inheritance. Failure to comply with these obligations gives rise to the offence of abandonment of the family, as defined in the Criminal Code.

Parental authority is the set of rights and duties that parents have over their unemancipated or incapacitated minor children. In other words, it is the global power that the law grants parents over their children. It is exercised jointly by both parents or by one parent alone with the express or tacit consent of the other.

But what rights and obligations does parental authority encompass? Civil law states the following;

1. Look after them, keep them in their company, feed them, educate them and provide them with an all-round upbringing.

2. Represent them and administer their goods.

3. Decide the minor's permanent place of residence, which may only be changed with the consent of both parents or, failing this, by judicial authorisation.

If the children are sufficiently mature, they shall always be heard before decisions affecting them are taken, whether in contentious proceedings or by mutual agreement. In any case, it shall be guaranteed that they may be heard in suitable conditions, in terms that are accessible, comprehensible and adapted to their age, maturity and circumstances, seeking the assistance of specialists when necessary.

Parents may, in the exercise of their role, seek the assistance of the authorities.

Now, the following should be pointed out; let us imagine a scenario in which the father has no financial resources, as has been pointed out, one of the duties of the parent is to provide maintenance, but this does not mean that he will be deprived of parental authority.

One of the benefits of paternal recognition has to do with the distribution of the inheritance. When the father dies, the child will inherit a minimum of 1/3 of the inheritance by law (to be shared with his siblings, if any). It should be noted, however, that such recognition may be made a posteriori, even when the father is no longer alive.

Finally, in cases of birth with only one recognised parentage, this determines the surnames, the parent who recognises his or her status as such being able to determine, at the time of registration, the order of the surnames.

The order of the surnames established for the first registration of birth determines the order for the registration of subsequent births with the same parentage. Once the child reaches the age of majority, the order of surnames may be changed.

If the father and mother cannot agree on the name of the child, the registrar will impose a first name and surname in common usage on the child whose parentage cannot be determined.

As a curiosity, although there is no list of expressly prohibited names, the law establishes a series of limitations that parents should bear in mind in order to avoid last-minute surprises at the Civil Registry:

No more than two simple names or more than one compound name may be given.

The name cannot objectively go against the dignity of the person, so names that are offensive or ridiculous, either on their own or combined with surnames, must be avoided.

Names of siblings with identical surnames may not be repeated. This may only be done if the eldest sibling who bore the name is deceased.

Acronyms are not allowed.

The name may not lead to confusion as to the correct identification of the person.

Among the most frequently mentioned "forbidden names" are those with negative connotations (such as Satan, Judas or Hitler), the full names of historical or famous people (such as Karl Marx or Leo Messi) and those that are indistinguishable from a possible surname (such as Manzana or Peral).

In conclusion, the parent has a number of rights in relation to his or her child, but also has obligations. Parental authority must always be exercised in the interests of the children, in accordance with their personality and respecting their rights and their physical and mental integrity.

Paula Sureda
Illeslex Lawyers

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