Parentage Act 19585: Impact on Family Law and Inheritance

Posted on Dec 7, 2024 in Law & Jurisprudence

Parentage Act 19585: A Radical Change in Family Law

Inspiring Principles:

  1. Equality of human beings
  2. Best interests of the child
  3. Right to identity of any person

Internationalization and Constitutionalization of Civil Law

This act collects principles of the CRC, the Pact of San Jose, Costa Rica, and the Convention on the Elimination of All Forms of Discrimination against Women. It adapts the legislation to constitutional principles.

Principle of Equality

Article 33 of the Civil Code implements the principle:

Determination of Parentage – Effects of Affiliation:

  1. Deletes the distinction between legitimate, natural, and illegitimate children.
  2. Matches the child with regard to kinship by blood. Parentage determined on a determined person gives rights to food and inheritance rights in respect of their ancestors.
  3. Parental authority shall be exercised in respect of all unemancipated minor children. Before, only legitimate children had this right; illegitimate children required a guardian or curator.
  4. All children attend the succession in the same market share.
  5. All children will be head of order in the first order of succession; it does not pass to the second if there are children.
  6. All children can represent their parents in the succession of their grandparents.
  7. Removes the concept of necessary food.

Equality in Determining Paternity

Although the law distinguishes between marriage and non-marriage filiation, there is no breach of the principle of equality because it only operates to facilitate the determination of paternity. The text never talks about children born in wedlock or out of wedlock. Once it has been determined, all children are affiliated.

The Child’s Best Interests

New to the Civil Code, this is included normatively. Article 222 states that parents’ basic concern is the best interests of the child, for which they seek higher spiritual attainment and material assistance and guide them in the exercise of fundamental rights arising from human nature in a manner consistent with their evolving powers. This aligns with Article 3 of the CRC.

Article 3 CRC: In all actions concerning children, whether undertaken by public or private institutions, a primary consideration that will be addressed will be the best interests of the child.

The child is a subject of rights and not an object of protection. They are a distinct being from their parents. They have the right to be heard in all decisions taken thereon (visits, food, tuition, etc.).

Article 242 of the Civil Code, as well as articles 222 inc. 2, 225 inc. 3, 229 inc. 2, 234 inc. 3, and 2409 inc. 2, reflect this principle.

Article 229 establishes a conceptual change regarding visits, establishing a right and duty to maintain a relationship with the child directly and regularly. This freedom is exercised as agreed upon or ordered by the judge.

Article 234 refers to the ability to correct children. It removes the power to punish; parents should also take care of their child’s personal development, incorporating the possibility that the court may intervene in defense of the child at the request of any person (a struggle between the privacy of the family and the State’s duty of special protection to the child).

Right to Identity

Articles 7 and 8 of the CRC, and Article 18 of the Pact of San Jose, Costa Rica, establish the child’s right to know their origin and who their parents are. Law 19,585 makes the real truth prevail over the formal truth in this sense.

  • Article 195 of the Civil Code: The law allows the investigation of paternity or maternity.
  • Article 198: Maternity and paternity may be established through all sorts of tests.
  • Article 199: Biological tests. The right to claim paternity is inalienable and imprescriptible.

Certainty of Biological Testing

Exclusion tests and DNA testing.

Refusal to Submit to Biological Expertise

Article 199 inc. 2 provides that unjustified refusal sets a serious presumption against the refuser.

Exceptions to Seeking the Real Truth

  1. Notorious possession status: If it is inconsistent with the biological truth, it is preferred. However, the judge may decide in favor of the biological truth, considering the best interests of the child.
  2. Child conceived through assisted reproductive techniques: Article 182 of the Civil Code.
  3. Acts of recognition and formal repudiation.
  4. Raw truth: Contested claims expire, so it also tends toward a formal truth in favor of family stability.

Descent

Value of descent between two people, one of whom is the parent of the other.

Determination of Parentage

Establishment of parentage.

Titles of Attribution

Events or acts under which a person has determined maternity and/or parenthood.

Classes of Parents by Nature

  1. Double
  2. No double
  3. Assisted reproductive fertilization: Articles 179 to 182.

Law 19,620: Adoption as sons.

Natural Filiation

Article 179: Natural filiation may be marital or nonmarital.

Marital Filiation: Requirements

  1. At the time of conception or birth, there is a marriage between the parents: Article 180 inc. 1.
  2. When after the birth of the child, the parents marry, provided that paternity has been previously determined.
  3. When paternity is not determined beforehand, and parents, at marriage or during its term, recognize the child in accordance with the provisions of Article 187.
  4. When a court order so provides under a paternity trial.