The existence of a dispute concerning the paternity of a deceased service member and the related property rights precludes consideration of the case under the procedure for special proceedings – SC CivCC

The establishment of the fact of paternity of a deceased service member cannot be considered under the procedure for special proceedings where such a fact affects a child’s right to receive a one-off monetary payment in connection with the death of the service member, and a person who is already receiving that payment objects to the establishment of paternity. In such a case a dispute as to a right exists between the interested persons, which is to be resolved under the procedure for contentious proceedings.

These conclusions were reached by the Supreme Court in the panel of judges of the First Judicial Chamber of the Civil Cassation Court.

In the case under review the applicant applied to the court with an application for the establishment of the fact of paternity of a deceased service member, with whom she had been in a de facto marital relationship, in respect of her minor daughter. At the same time the mother of the deceased objected to the application, stating that she had not been aware of her son’s relationship or of the forthcoming child. She emphasised that the establishment of paternity directly affected her rights, in particular the amount of the one-off monetary payment.

The courts of first instance and of appeal allowed the application, referring to the fact that paternity had been proved on the basis of the findings of a molecular-genetic expert examination and other indirect evidence (joint photographs, correspondence from messaging applications, etc.).

The Civil Cassation Court of the Supreme Court set aside the judicial decisions of the courts of the previous instances and delivered a new judicial decision by which the application for the establishment of the fact of paternity was left without consideration, making the following legal findings.

Pursuant to part 1 of Article 15 of the Civil Code of Ukraine every person has the right to the protection of his or her civil right in the event of its infringement, non-recognition, or contestation.

The court of cassation instance emphasised that the proving of certain facts on which the arising of a civil right depends may constitute a ground for a person to apply to a court with an application for their establishment. In the absence of a dispute as to a right such an application is considered under the rules of special proceedings.

The Civil Cassation Court of the Supreme Court clarified that a dispute as to a right is a formally recognised contradiction between subjects of civil law that has arisen by reason of the infringement or contestation of subjective rights by one party to civil legal relations against the other and that requires settlement by the parties themselves or resolution by a court. 

The determining circumstance when considering an application for the establishment of certain facts under the procedure for special proceedings is that the establishment of such a fact is not connected with the subsequent resolution of a dispute as to a civil right.

Consequently, when cases are considered under the procedure for special proceedings the existence of a dispute as to a right is excluded — a dispute connected with the infringement, contestation or non-recognition, as well as with the failure to prove the existence, of a subjective right in circumstances where there are certain persons who impede the exercise of such a right.

The Civil Cassation Court of the Supreme Court emphasised that one of the purposes of establishing the fact of paternity in the present case was for the child to acquire the right to a one-off monetary payment in connection with the death of the service member, a payment that is already being received by his mother. The latter objected to the establishment of the fact of paternity of her deceased son in respect of the applicant’s child, since this directly affected her rights as the recipient of the one-off monetary payment.

The Civil Cassation Court of the Supreme Court observed that the child’s acquisition of the right to the one-off monetary payment may also give rise to property claims against the mother of the deceased service member in respect of a part of the funds already received by her.

The concept of a “legal dispute” is to be interpreted broadly, proceeding from the approach of the European Court of Human Rights to the interpretation of the concept of a “dispute as to a right” (Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms). The European Court of Human Rights states that, under the Convention, the concept of a “dispute as to a right” is not to be taken in a purely technical sense; it is to be given a substantive rather than a formal meaning.

Consequently, between the applicant, who asserts that the deceased service member is the father of her child, and the mother of the deceased, who does not recognise his paternity in respect of the child and, accordingly, the child’s right to a part of the one-off monetary payment, there exists a dispute concerning paternity and the funds that were received as the one-off monetary payment.

If, during the consideration of a case under the procedure for special proceedings, a dispute as to a right arises that is to be resolved under the procedure for contentious proceedings, the court leaves the application without consideration and explains to the interested persons that they have the right to bring a claim on general grounds (part 6 of Article 294 of the Civil Procedure Code of Ukraine).

The Civil Cassation Court of the Supreme Court concluded that such a dispute is to be resolved under the procedure for contentious proceedings, and that therefore the grounds provided for by part 6 of Article 294 of the Civil Procedure Code of Ukraine for leaving the application for the establishment of the fact of paternity without consideration are present.

Resolution of the Civil Cassation Court of the Supreme Court of 5 August 2026 in case No. 619/866/24 (proceedings No. 61-4633св26) – https://reyestr.court.gov.ua/Review/138822166. 

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.