The Civil Cassation Court Within the Supreme Court Explained What Name and Surname Should Be Given to the Child if There Is No Agreement Between the Parents

The spouses could not agree on the name and surname to be given to their newborn child, since the wife had retained her maiden name during the marriage. The father applied to the Centre for Civil Status Acts Registration, but he was refused registration of the child with the proposed surname and first name as the mother did not give her consent.

The plaintiff asked the court to determine the surname, name, patronymic of the child as indicated by him, and to oblige the Centre for Civil Status Acts Registration to carry out the child's state registration. 

The district court, the decision of which was accepted by the court of appeal, granted the claim, because according to the legislation of Ukraine, parents must register their child no later than one month from the date of birth of the child with a Centre for Civil Status Acts Registration, which had not been done by the parties for more than a year because of differences of opinion on the matter.

The Civil Cassation Court within the Supreme Court overturned the previous judgments in the part regarding claims to determine the surname and name of the child and adopted a new judgment in this part, making the following legal conclusions.

According to part 1, Art. 3 of the Convention on the Rights of the Child, in all actions concerning children, primary attention is paid to the best possible provision of the child's interests.

Article 141 of the Family Code of Ukraine establishes that the mother and father have equal rights and responsibilities in relation to the child.

The presumption in favour of one of the parents in cases involving children is not confirmed at the UN level, which arises from the Declaration of the Rights of the Child or the case law of the ECHR, and also does not correspond to the position of the Council of Europe and most member states of the Council of Europe.

Therefore, it should be concluded that neither the legislation of Ukraine nor the provisions of international law contain provisions that would give any of the parents a priority right in relation to their child.

According to part 9, Art. 7 of the Family Code of Ukraine, family relations are regulated on the basis of justice, good faith and reasonableness, in accordance with the moral foundations of society.

According to part 1, Art. 7 of the Convention on the Rights of the Child, a child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality.

According to parts 1, 4 of Art. 144 of the Family Code of Ukraine, parents are obliged to immediately, but no later than one month from the date of birth of the child, register the birth of the child with the state registration authority for civil status acts.  

Registration of the birth of a child is carried out with the simultaneous determination of the origin of the child, as well as the choice of his surname, first name, patronymic, which is certified by a birth certificate.

The right to a name established by Art. 294 of the Civil Code of Ukraine, is an inalienable personal non-property right of an individual.

In this case, the child's parents did not agree on the name and surname of the child born.

The courts of previous instances agreed with the name and surname proposed by the father, at the same time they did not give reasons for preferring the rights and interests of the father and did not take into account the position, rights and interests of the mother.

In accordance with the provisions of the Family Code of Ukraine, a child can be given no more than two names, unless otherwise follows from the custom of the national minority to which the mother and (or) father belong (part 2, Article 146 of the Family Code of Ukraine).

At the same time, parents with different surnames can give a double surname to the child, formed by combining their surnames (part 2, Article 145 of the Family Code of Ukraine).

Given the equality of the rights of parents, the principles of reasonableness, the Supreme Court believes that the child's name and surname should be double.

In resolving this issue, the Supreme Court took into account the interests of both parents, between whom a dispute arose over the name and surname of the child. Providing a double name and surname is consistent with part 2 of Art. 145, part 2 of Art. 146 of the Family Code of Ukraine and corresponds to the principles of reasonableness and justice (Article 7 of the Family Code of Ukraine).

Resolution of the Supreme Court of June 29, 2022, in case No. 753/7395/20 (proceedings No. 61-18422св21) – https://reyestr.court.gov.ua/Review/105148690.

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