The fact of paternity of a missing person, in the absence of a decision declaring him deceased, cannot be established in separate proceedings - SC CivCC

The fact of paternity of a person who was not married to the child's mother is established in a separate proceeding only in the event of the death of such a person or declaration of death.

If a person is considered missing, but there is no information about his or her death or a court decision declaring him or her dead, the establishment of paternity of such a person is carried out by filing a claim for recognition of paternity in the course of action.

This conclusion was reached by the Supreme Court as part of the panel of judges of the First Judicial Chamber of the Civil Cassation Court.

In the case under review, the applicant sought to establish the paternity of a missing person in relation to her child, to amend the birth certificate and the child’s personal details, in order to obtain a survivor’s pension.

In refusing to initiate proceedings, the district court, whose conclusions were upheld by the court of appeal, reasoned that the court's decision was based on the fact that the court's consideration of an application for establishing the fact of paternity in a separate proceeding requires the death of the child's alleged father to be established. The absence of information about the death of the child's alleged father precludes the possibility of considering such an application in a separate proceeding.

The SC CivCC agreed with such conclusions, noting that a prerequisite for applying to the court for establishing the fact of paternity under Part 1 of Article 130 of the Family Code of Ukraine is an entry about the child's father in the book of births at the direction of the mother, as well as the death of the person whose paternity is being established or the declaration of such a person dead.

Thus, in the opinion of the panel of judges, the absence of a court decision declaring the child's alleged father dead or proper evidence of his death excludes the very possibility of applying to the court with a statement on establishing the fact of paternity in a separate proceeding under Article 130 of the Family Code of Ukraine. In the absence of information about the death of the person whose paternity is being established, it is necessary to file a claim for recognition of paternity in accordance with Article 128 of the Family Code of Ukraine.

At the same time, taking into account the grounds and subject matter of the application, as well as the facts established in the case and the evidence examined, the court of first instance, whose conclusion was upheld by the appellate court, additionally erred in reasoning its decision by stating that the opening of proceedings should be refused on the grounds that the establishment of the said fact was necessary for the applicant in order to further secure a survivor’s pension for the child, which, in turn, meant that the applicant effectively had a dispute with the authority responsible for granting and paying such benefits, thereby excluding the possibility of considering the application under separate proceedings.

Resolution of the Civil Cassation Court of the Supreme Court of 9 July 2025 in case No. 201/1017/25 (proceedings No. 61-5429св25) - https://reyestr.court.gov.ua/Review/128780665.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.