What happens when a man knows he is the father of a boy or girl and the other party doesn’t recognize his paternity? Is there a legal recourse he can use? What does the Spanish Civil Code establish in these cases? As lawyers specializing in family law and former judges, we want to answer these questions.
First of all, we must explain the concept of filiation. It is the legal relationship established between parents and children from which a series of rights and obligations are derived. Filiation can be derived by nature or by adoption; in the former case, it can be marital or extramarital.
Filiation actions are those that either establish or destroy a parent-child relationship via a court ruling. They can be:
1. Claims: when seeking to determine filiation in favor of one parent (filed by the mother, father, son or daughter).
2. Challenges: when seeking to contest the alleged filiation between the parent and child, which can be filed independently or jointly.
In the cases we’re discussing in this post, for a man to claim his rights as a father and get a declaration of filiation from the mother, he must file a claim for recognition of extramarital paternity or a claim of extramarital filiation. The birth certificate issued by the Civil Registry Office of the corresponding locality must be attached to these claims, as well as proof of the romantic relationship from which the child that is the subject of the claim was born. In these cases, documentary evidence such as a lease agreement that shows that the two people lived in the same home can be provided. At ICN LEGAL, we remind you that photos and videos showing the parties living together can also be provided, or doctor’s notes proving that the claimant attended the gynecological checkups performed during the pregnancy. The testimony of witnesses who were familiar with both the parents and the child’s environment can also be incorporated into the claim.
In these cases, the claimant must formally show his agreement to undergo biological testing regarding his paternity.
A claim of extramarital filiation can be filed by a presumed child throughout their life. However, if this action is taken by a parent, their claim must be filed within one year of knowing the facts, i.e. of the existence of the son or daughter for whom extramarital paternity is being claimed.