Affiliation between parents and children : classes, effects and challenge

Affiliation is the link, biological or legal, that exists between parents and children from which a series of effects are derived.

Through this article you will learn:

  • The classes of affiliation.
  • Effects of affiliation.
  • Challenge of filiation.

Kinds of affiliation

According to our Family Code there are two types of affiliation.

Affiliation can take place by nature and by adoption. Filiation by nature can be marital and non-marital. It is matrimonial when the parents are married to each other.

1. Affiliation by nature

It is one that exists between parents and children biologically or through assisted reproduction techniques.

Affiliation by nature can be:

Marital affiliation

The filiation will be matrimonial when:

  • The parents are married to each other at the time of the child’s birth.
  • The parents marry after the birth of the child.
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Now, in the second case, filiation is marital when it is legally determined by the registration of the birth together with the marriage of the parents, or by a final judgment.

Non-marital affiliation

The filiation of a child will be non-marital when the parents are not married to each other. For example, children of a common-law couple or an extramarital relationship.

Non-marital affiliation is determined:

  • By declaration of the father at the time of registration of the birth in the Civil Registry, in the corresponding official form.
  • By the recognition of the father before the Person in Charge of the Civil Registry, in a will or in another public document.
  • By resolution falling on a file processed in accordance with the Civil Registry legislation, which tends to avoid the corresponding judicial process.
  • By final judgment relapsed into judicial filiation proceedings.
  • Regarding the mother, when the maternal filiation is recorded in the birth registration.

2. Adoptive affiliation

Adoptive, non-biological filiation takes place through the adoption of a child through a judicial resolution in a voluntary adoption jurisdiction file.

1. The adoption will be constituted by a judicial resolution, which will always take into account the interest of the adopter and the suitability of the adopter or adopters for the exercise of parental authority.

Affiliation effects

Affiliation, whatever its kind, generates a series of rights and obligations for parents and children.

Marital and non-marital affiliation, as well as adoptive affiliation, have the same effects, in accordance with the provisions of this Code.

Determination of surnames

The first effect produced by filiation is the determination of the child’s surnames.

Affiliation determines surnames in accordance with the provisions of the law.
If filiation is determined by both lines, the parents by mutual agreement may decide the order of transmission of their respective first surname, before registration. If this option is not exercised, the provisions of the law will govern.
The order of surnames registered for the eldest of the children will govern the subsequent birth registrations of their siblings of the same relationship.
The child, upon reaching the age of majority, may request that the order of the surnames be altered.

Attribution of parental authority

As a general rule, the ownership and exercise of parental authority correspond to both parents jointly.

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However, the parent will be excluded from parental authority:

  1. When he has been convicted due to the relationships to which the generation obeys, according to a final criminal sentence.
  2. When the affiliation has been judicially determined against their opposition.

In both cases, the child will not bear the surname of the parent in question unless requested by him or his legal representative.

Food Law

Affiliation establishes the right to food for the children. Both parents are obliged to maintain and care for their children.

Although they do not have parental authority, both parents are obliged to look after the minor children and provide them with support.

Inheritance rights

Filiation grants children inheritance rights with respect to the parents’ assets. Specifically, it is the legitimate one . Part of the inheritance that parents cannot dispose of to the detriment of their children.

Challenge of filiation

The judicial filiation process is the procedural channel for exercising filiation actions, including challenging filiation.

Through the action to challenge affiliation, the aim is to prove that the affiliation that appears in the Civil Registry is not true. That is, it consists of declaring that the father or mother who appears registered is not really one.

  • Who can exercise the action to challenge filiation: The person who appears in the Civil Registry as a father, mother or child, as well as their heirs, may exercise this action.
  • Deadline to exercise the action: It is necessary to distinguish according to whether the affiliation is marital or non-marital:
    • Marital filiation: The period will be 1 year from the date of registration or from the time the lack of biological paternity is discovered.
    • Non-marital affiliation: The period will be 4 years from registration in the Civil Registry.
  • Representation and defense: In the judicial process of challenging affiliation, the parties must be assisted by a lawyer and represented by a solicitor.
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