FILIATION WITH THE FATHER OF THE CHILD OUT OF WEDLOCK
FILIATION WITH THE FATHER OF THE CHILD OUT OF WEDLOCK

Summary/Abstract: Affiliation is both a biological link springing from procreation and birth, and a social institution, an artificial creation that includes social, cultural and religious elements, elements that have left their mark on legal solutions over time. In the present paper, I set out to analyze the child's right to filiation through the prism of his legislative consecration and the acceptance of art. 8 of the European Convention on Human Rights, as well as one of the two ways of establishing the paternity of the child out of wedlock, namely the court decision admitting the action in establishing paternity. The analysis is performed by reference to the provisions of the New Civil Code, appealing, at the same time, to the provisions of the Family Code, which have regulated the institution of parentage for decades. Internationally, the legal status of the child out of wedlock is governed by the provisions of the following instruments: the UN General Assembly Convention on the Rights of the Child of 1989, the European Convention on the Legal Status of Children Born out of Marriage, concluded in Strasbourg on October 15, 1975, to which Romania also acceded by Law no. 101/1992. The child out of wedlock has the unlimited right to establish parentage, without any limitation of the term of extinctive prescription, has the right to bear the family name of the father, to inherit it on equal terms with the child in the marriage, has the right to maintenance, the right to personal connections, etc. The new Civil Code (art. 424-428) preserves almost the entire regulation in the matter, as it results from the content of the Family Code. If the paternity of the child has not been recognized voluntarily, the establishment of the paternal filiation relationship can be done by force, by a court decision pronounced as a result of promoting the action in establishing paternity. Which means that whenever the father does not recognize his child, the mother, or in her absence, the legal representative, can sue the alleged father, demanding what is rightfully due to the child, following the principles that govern this matter:- The principle of child protection; - The principle of establishing the truth about paternity - The principle of equal rights between the child in marriage and the child out of wedlock. The action for establishing the filiation towards the father is that action in the civil status complaint, the object of which is the proof of paternity out of wedlock. This action tends to establish, through justice, the relationship of filiation between a child and the one he considers his father. The action in establishing paternity belongs to the child out of wedlock. He is the holder of the action, according to art. 424 of the New Civil Code, which resumes art. 59 of the Family Code. Regarding the introduction of the action, we distinguish the following situations: - The child does not have the ability to exercise. In this case, the action is brought on behalf of the child, by his mother, even if she is a minor, and in his absence by his legal representative (art. 424 paragraph 1 of the New Civil Code, corresponding to art. 59 paragraph 1 C. fam.). It is accepted that the mother can bring the action on behalf of the child, without the need for any consent, whether she is between 14 and 18 years old or under 14 years old. - The child has limited exercise capacity. In this case, it was argued that such a child can bring the action alone, without the need for any consent, because the action is personal, and the approval is required, unless otherwise provided by law, for property actions.

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