I’m your father: how filiation is determined by Spanish law

Intuitively, we all understand that filiation is essentially a biological fact: every human being has been conceived and procreated by others. The law recognizes and regulates this natural event by establishing a series of obligations between parents and children. Thus it establishes a legal bond that will never be broken as long as one of the parties is alive, even when the children leave the custody of their parents.

This article will therefore focus on filiation by nature (it will not address adoptive filiation), specifically in regards to claims of filiation and their proof.

The iconic phrase used as the title of this article, which most readers will recognize from one of the most famous scenes in cinematic history, also leads to one of the most significant moments in Greek tragedy: the anagnorisis (from the Ancient Greek ???????????, “recognition”) which occurs when a character discovers key facts about their origin. For example, recall the moment when Oedipus discovers that he has lain with his mother, Jocasta, and killed his father, Laius.

This recognition was also a key concept in Ancient Rome. The paterfamilias had to recognize his child, once brought into the world by a Roman matron, in a ceremony in which the mother placed the newborn at the feet of its father. It was only accepted into the family if the father picked it up.

The reason for this tradition, which may seem somewhat peculiar to modern eyes, lies in a fact that is known by all, and is summarized by the Latin aphorism mater semper certa est, pater semper incertus est. The triggering event of childbirth proves that the mother is the progenitor; however, for much of history it was practically impossible to prove that the father was the progenitor. Therefore different cultures have sought to address this uncertainty by using ceremonies (such as the Roman ceremony described above) or legal mechanisms to determine filiation. Thus, the Spanish Civil Code (CC) distinguishes between matrimonial and non-matrimonial filiation. In the first case, it is presumed that the father is the husband of the mother (art. 116 CC); in the absence of said presumption, a judge must declare a judgement or the father must recognize the child (art. 115 CC). If the child, however, is born out of wedlock (despite the parents being common law partners), the father must recognize the child, in either the civil registry, his will, or another public document. In the absence of said recognition, a judgment is required to declare it (art. 120 CC). The proof required to establish paternity can be deduced from the above: registration in the civil registry, judgement, by the presumption of matrimonial paternity, or by the possession of status (art. 113 CC). Possession of status means that the child bears the name of the father, is treated as a child by the father, and is viewed as such in public opinion, which are the three traditional requirements of nomen, tractatus and fama.

This possession of status is important in the event that the father has to claim his paternity before the courts, which is becoming increasingly common in our society, since the law distinguishes those who are entitled to lodge a claim and the statute of limitations based on whether or not said possession of status exists.

– Matrimonial filiation: art. 131 CC entitles anyone with a legitimate interest to claim declaration of a filiation manifested by constant possession of status, except when the claimed filiation contradicts another legally determined filiation.

– Non-matrimonial filiation without possession of status: art. 132 CC attributes legitimacy to the father, the mother or the child or its heirs. This action is imprescriptible.

– Non-matrimonial filiation with possession of status: anyone with a legitimate interest has the right to declare filiation manifested by constant possession of status.

– Matrimonial filiation without possession of status: the former art. 133 CC stated that the child was only legitimized during its whole life.

This final case was particularly controversial since the cited article violated the right to equality (art. 14 Spanish Constitution (SC)) and that of effective legal protection (art. 24 SC), and compromised the constitutional principles of the protection of the family and free investigation of paternity (art. 39.1-2 SC). Based on these arguments, the Provincial Court of Ciudad Real posed a question of unconstitutionality that was subject to resolution by Constitutional Court decision 273/2005 of 27 October, which increased legitimacy for the presumed father’s claim of filiation when possession of status does not exist. With Law 26/2015 of July 28, this resolution materialized in the modification of art. 133 CC, which now allows the father to exercise an action of filiation within one year from the date they learn of its birth, or from the date when they learn the facts the claim is based on.

Increasingly, it is fathers who want to initiate these types of actions. For example, consider a couple that breaks up prior to the child’s birth. If the mother doesn’t recognize the paternity of her former partner, the father is forced to initiate the actions of 133 CC if he wants to establish parental-filial ties with the child. If he fails to act quickly, he runs the risk of drastically reducing his visitation rights and his ability to be a part of his child’s life, even if that is his desire.

As for proving said claims, photos, correspondence and messaging systems are vitally important. Before undertaking biological testing, (which may depend on the outcome of the action), sufficient evidence of the necessary relationship between the progenitors must be provided.

In conclusion, in the event that the mother doesn’t recognize the filiation of the father, he must act swiftly and through the channels established by our legal system. Good legal advice, as well as the preparation of strong evidence, will be the best guarantee that the father will be able to enjoy the company of his child as soon as possible, and thereby avoid the difficulties arising from a lack of contact in the early stages of its life.

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