Problems of the use of presumption in establishing paternity

Abstract

Introduction. Current Russian legislation regulates the procedure for establishing a legal connection between a born child and his or her father, however, in practice, problems with applying the presumption arise when establishing paternity. The problem is caused by the fact that it is the marital relationship of the child’s parents that establishes paternity, and not any biological relationship between the child and the father. In the context of family law, perhaps the most significant legal presumption is the presumption of paternity. However, as technology advances and the institution of family develops, determining paternity becomes increasingly complex. The legal significance of the presumption of paternity lies in the fact that with its help spouses are freed from proving the origin of a child born during marriage. The presumption of paternity is based on the presumption of validity of marriage, which assumes that spouses enter into marriage voluntarily and with the intention of having children. This presumption serves to protect the rights and interests of the child, providing him or her with a stable and safe family environment. It also protects spouses from unfounded accusations of infidelity or adultery. However, the presumption of paternity is not absolute and can be rebutted in court if irrefutable evidence is presented that the child is not the biological child of the spouse. The impact of this legal instrument is felt most when it is least expected. Most often, when a married couple separates without divorcing or if the woman becomes pregnant (whether married or not), in the case of the birth of a child from a surrogate mother. In these and similar situations, there is a presumption that the husband is the father. Theoretical analysis. The main theoretical approaches to and grounds for the use of presumption in establishing paternity, both for the married and unmarried, are considered. Empirical analysis. The normative acts in the field of the application of the presumption of paternity, including foreign experience, are analyzed. Results. The author comes to the conclusion that it is necessary to apply an out-of-court procedure to overcome the presumption of paternity in cases of the birth of a child from a woman married to another man, as well as the need for state funding of genetic testing to ensure the use of DNA analysis as the only proof of kinship of the father and the child.

Keywords

• presumption of paternity
• biological kinship
• protection of paternity
• establishment of paternity