RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF UZBEKISTAN

of November 25, 2011 No. 8

About application of the legislation by courts by hearing of cases about paternity proof

Practice of application by courts of the legislation by hearing of cases on paternity proof shows that courts in general correctly resolve the disputes following from family legal relationship. At the same time in activity of the courts there are also mistakes in case of application of regulations of the specified legislation.

For the purpose of ensuring the correct and uniform application by courts of the legislation by hearing of cases on paternity proof, being guided by article 17 of the Law "About Courts", the Plenum of the Supreme Court of the Republic of Uzbekistan decides:

1. Explain that one of priority tasks of courts is ensuring the constitutional principle of maternity welfare and the childhood with the state, protection of the rights and the interests of children protected by the law, irrespective of their origin and civil status of parents.

With respect thereto courts need to strengthen attention to the correct, timely consideration and permission of cases on paternity proof, to carefully carry out preparation of cases of this category for legal proceedings, to take measures to complete clarification of the actual facts of the case and relations of the parties.

2. According to article 61 of the Family code in case of the child's birth at the parents who are not married among themselves paternity is established by body of civil registration according to the joint statement of mother and person recognizing himself as the child's father (in cases of death of mother of the child, recognition by its court incapacitated, impossibility of establishment of its location or deprivation of its parent rights - according to the statement of person recognizing himself as the child's father).

The refusal of body of civil registration in paternity proof can be appealed in administrative court by person recognizing himself as the child's father.

In case of the child's birth at the parents who are not married among themselves in the absence of the joint statement of parents or the statement of the father of the child in the cases specified in article 61 of the Family code, paternity is established judicially.

3. The question of paternity proof is resolved by court according to the procedure of claim production according to the statement of one of parents, the guardian (custodian) of the child or according to the statement of person dependent on which there is child, or according to the statement of the child of age of majority on reaching it (article 62 SK).

The court also has the right to establish according to the procedure of claim production paternity according to the statement of person who is not married to the child's mother in case mother of the child died, is recognized as incapacitated, it is impossible to establish the place of its stay or it is deprived of the parent rights if the guardianship and custody body did not agree to paternity proof based on its statement (part two of article 61 SK).

4. Owing to article 72 of the Family code the minor parents who are not married in case of the birth of the child at them have the right to impose independently requirement about paternity proof of age of sixteen years on reaching them. With respect thereto, the court has no right to return the application for paternity proof of specified persons based on Item of 1 part one of Article 195 of the Code of civil procedure of the Republic of Uzbekistan (further - GPK).

On the case of paternity proof on which the party is the minor the court for the purpose of ensuring protection shall recruit its right of the interests protected by the law in case in quality of legal representatives of his parents, adoptive parents or the custodian (Article part two 42 GPK).

5. The statement for paternity proof can be adopted to production of court only after registration of the birth of the child in bodies of civil registration and submission of the certificate of birth with the record about the father made according to part three of article 207 SK. In case of lack of registration of the birth of the child in bodies of civil registration, the court refuses adoption of the statement. In that case the court shall explain to the interested person, the right of the appeal to body of civil registration for registration of the birth.

As the record about the child's father made by bodies of civil registration is the proof confirming the child's origin from person specified in it, the court refuses adoption of the statement also if in the birth record the child's father according to parts one and the second article 207 SK specifies other certain person.

6. Courts should mean that the law does not provide the term of limitation period for this category, paternity can be established after the child's birth at any time. At the same time it is necessary to consider that in sense of part two of article 62 of the Family code paternity proof concerning the child who reached age of eighteen years is allowed only according to its statement and if it is recognized as incapacitated - according to the statement of his guardian or guardianship and custody body.

In case of the announcement of the minor who reached sixteen years sui juris (emancipation), paternity proof concerning such minor is also allowed only from its consent.

7. It must be kept in mind that the law (part three of article 62 SK) provides certain conditions which the court shall take into account in case of the dispute resolution about paternity proof. Such conditions are:

cohabitation and maintaining general economy by mother of the child and the defendant till the child's birth;

joint education or content of the child by mother and defendant;

availability of other proofs, with reliability confirming recognition by the defendant of paternity.

Explain to courts that for satisfaction of requirements about paternity proof establishment in the matter of one of the specified conditions is enough.

8. Cohabitation and maintaining general economy of the defendant with mother of the child can be confirmed by availability of the circumstances characteristic of the family relations (accommodation in one premises during conception and till the child's birth, maintaining the general budget, joint food, mutual care, property acquisition for joint use, etc.).

In case of the solution of question of whether cohabitation and maintaining general economy by the parties took place, in each separate case the court needs to proceed from the specific facts of the case and objective living conditions of the parties.

The termination of such relations between the parties till the child's birth in itself cannot form the basis for refusal in the paternity suit, except as specified, when they were stopped prior to pregnancy.

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