The period is 300 days from the date. Examples from judicial practice

Which regulates the main issues of divorce, division of property, upbringing and maintenance of children, etc. The chapters containing information on these issues are of particular interest. This is due to the fact that when entering into marriage, newlyweds do not have conflict situations, but when it is dissolved, they almost always exist. The problems of children and joint property are especially acute.

What does the law say about 300 days after divorce?

The law on divorce in the Russian Federation is represented by the Family Code, which contains all the main provisions. In addition, the same document regulates issues related to determining the fate of a child after the divorce of his parents. However, if with children who have already been born everything is a little simpler, the solution to the question of the fate of an unborn baby is more difficult. What middle name should I give him after birth? How to issue a certificate?

These and other questions are answered by Article 48 of the Family Code of the Russian Federation. It defines the rule of 300 days after the dissolution of marriage between husband and wife.

The meaning of the rule is that a child who is born within 300 days of the divorce will bear the patronymic of the mother’s former spouse, since he is automatically recognized as the father.

There is a lot of controversy about this rule. The most common ones are:

• the mother’s disagreement with the indication of her ex-husband in the “father” column;
• the ex-husband’s disagreement with the indication of his name on the child’s birth certificate;
• disagreement of the child's real father, who is not the ex-husband, with this order.

Depending on the specific case, it is necessary to act according to different scenarios. If the mother does not agree with the inclusion of her ex-husband as the father on the birth certificate, then such an objection alone will not be enough. Civil registry offices will be required to follow the provisions of Art. 48 of the RF IC and make an appropriate entry in the child’s birth document.

To prevent this from happening, there are several options:

• contacting the civil registry office with the biological father of the child at the time of registration of the certificate. It is the real father who can appear at the registry office and draw up a document establishing paternity. In this case, the registry office employee will enter his data into the certificate;
• appeal to the court of the ex-husband to challenge paternity or renounce it. If the former spouse is sure that he is not the father of the child, he has the right to file a statement of claim, on the basis of which, and with the consent of the mother, an analysis will be carried out. If the results show that his claim is justified, then his name will not be included in the child’s documents and he will not be recognized as the father.

The law on divorce of spouses is always, first of all, to protect the interests of the child. That is why the law on children upon divorce establishes a rule of 300 days after the divorce. Resolution of the nuances falls on the shoulders of adults.

Law on division of property

A special issue in family law is the division of property during divorce. In Russia, it is also represented by the Family Code and regulates the division of everything acquired by spouses in an officially registered marriage.

The RF IC establishes two options for property regimes for spouses:

• law;
• negotiable.

The first option assumes the absence of a marriage contract and the division of property in the event of divorce or the desire of one of the parties. The second option involves drawing up a marriage contract, which specifies the rules and procedure for dividing everything acquired by the spouses during the marriage.

The Property Division Act 2016 states that in favor of one of the spouses, the share may be slightly increased or decreased. For example, a parent with whom minor children remain may receive a slightly larger part of the apartment than the second, as well as property intended for children.

However, there are circumstances that cannot affect the legal division:

• the fact of registration of property in the name of one of the spouses;
• the fact of acquisition of the object by one of the spouses;
• the fact of debiting funds for a purchase from the account of the husband or wife.

When drawing up a marriage agreement, the procedure is completely different: the division will take place according to a scenario that the spouses themselves will determine. The terms of the agreement include:

• the absence of illegal instructions and clauses;
• absence of incorrect, contradictory data, as well as errors, clerical errors and inaccuracies;
• mutual and voluntary consent to sign the agreement.

The form of such a document is established as notarial written. That is why the spouses will have to contact a notary. If they are not sure that they can correctly develop a draft agreement, they can pay for the services of a specialist, and he will do everything quickly and correctly.

After a divorce, a husband and wife have the right to divide all property peacefully and without involving the court. Often this cannot be done, so the claim is filed by the interested spouse. It is considered taking into account the evidence, the opinions of the parties and in accordance with the law. If there is a prenuptial agreement, the process is simplified even if there is a conflict, since the document sets out the procedure for division.

Thus, there are a huge number of questions regarding determining the fate of the child and the division of property. All of them are regulated by the Family Code of Russia, including the rule of 300 days after divorce. It involves indicating a recently divorced spouse as the father of a child born during this period. All disputes and conflicts regarding children and property between husband and wife are resolved in court.

QUESTION: My daughter and her husband divorced at the end of June 2013 (a divorce document was received). She left her husband’s last name because she has a son from this marriage. Since April 2013, he has been living with another man, not in a relationship. He gave birth to a child on January 22, 2014. The child's father came to the registry office to issue a birth certificate in his last name. There he was denied this, citing the law - 300 days have not passed since the divorce and the surname can only be given to the mother, i.e. first husband). 1. In this situation, is it possible to submit a joint application to establish paternity if the parents are not registered, and issue a certificate in the father’s surname.
2. And what does 300 days have to do with it if there is a father of the child born. Do you really have to wait 3 months to get a birth certificate in your father's last name?

LAWYER'S ANSWER: You are under the “presumption of paternity.” Paragraph 2 of Article 48 of the Family Code of the Russian Federation establishes a presumption of paternity: If a child is born from persons who are married to each other, as well as within three hundred days after the date of divorce, recognition of it as invalid or from the moment of death of the spouse of the child’s mother, the former spouse is recognized as the father of the child (spouse) of the mother, unless otherwise proven (Article 52 of this Code). The paternity of the spouse of the child's mother is certified by the record of their marriage.

You have the right to file a claim to establish paternity. The plaintiff will be the mother of the child, the defendant will be the ex-husband. And the biological father must be involved as a third party. If the Parties in court confirm these circumstances on record, the court decision will establish the surname, name and patronymic of the father. The civil registry office, based on a court decision, makes changes to the child’s birth record.
This right is established by Art. 52 of the Family Code of the Russian Federation, according to which the entry of parents in the birth register can be changed by court decision.
The presumption of paternity for up to 300 days was established to protect the interests of the mother

SAMPLE SAMPLE OF A CLAIM FOR ESTABLISHING PATERNITY :
Defendant XXX and I were married, which was dissolved on January 8, 2012. based on a joint application of the spouses.
HH,MM,YY. I had a daughter, XXX (I enclose my birth certificate). The father of the child in the birth certificate (record of the birth certificate No. XX) is indicated by the defendant in accordance with the requirements of paragraph 2 of Art. 48 of the Family Code of the Russian Federation (presumption of paternity), because at the time of the daughter’s birth, less than three hundred calendar days had passed after the divorce.
Information about the father contained in birth record No. XX is unreliable due to the following circumstances.
Family relations with XXX were in fact terminated before the dissolution of the marriage - since October 2012, we have not maintained a common household.
In fact, I lived together with XXX in an apartment at Yaroslavl, st. ______. We run a common household. We have a family relationship and my daughter's biological father is DDD. is TTT.
By virtue of paragraph 2 of Art. 51 of the Family Code of the Russian Federation, if the parents are not married to each other, an entry about the child’s mother is made at the request of the mother, and an entry about the child’s father is made at the joint application of the father and mother of the child, or at the request of the child’s father (clause 4 of Article 48 of this Code) , or the father is registered according to the court decision.
According to Art. 52 of the Family Code of the Russian Federation, the entry of parents in the birth register, made in accordance with paragraphs 1 and 2 of Article 51 of this Code, can be challenged only in judicial procedure at the request of the person registered as the father or mother of the child, or the person who is actually the father or mother of the child, as well as the child himself upon reaching the age of majority, the guardian (trustee) of the child, the guardian of the parent recognized by the court as incompetent.
The circumstances set out in this statement of claim are not disputed by the defendant. I will try to ensure the appearance of the defendant.
Taking into account the above circumstances, guided by the requirements of Art. Art. 48, 51, 52 of the Family Code of the Russian Federation, Art. Art. 131-135 Code of Civil Procedure of the Russian Federation,

I ASK THE COURT:

Establish that XXX HH.MM.YY. year of birth, place of birth: _______, is the father DDD HH.MM.YY year of birth, place of birth g
Oblige the Civil Registry Office Department of the Dzerzhinsky district of Yaroslavl to make changes to the registration record No. XX dated as follows:
Exclude information about XXX recorded by the child’s father;
Register the father of the child as “LLC”;
Change the child’s last and patronymic name and write it down as “DDD”.

There is a requirement in the legislation of the Russian Federation that can become a basis for refusing to register a newborn child for widows and recently divorced mothers in the name of the biological father. This is the so-called “300 days” law, which must necessarily expire from the date of official divorce or death of the legal spouse until the birth of the baby. If 300 days have not elapsed since the divorce before the birth of the child, the law obliges the civil registry office to register it in the name of the ex-husband of the mother of the newborn.

More about this rule

The obligations of the Civil Registry Office in this case are spelled out in two regulations: Art. 48 of the Family Code and Art. 17 of the Federal Law “On Acts of Civil Status”. They both talk about the presumption of paternity - the automatic recognition of the ex-husband as the father of the child, despite the fact that he may well not be the true father and did not build a family relationship with his wife long before the official termination of their marriage.

The corresponding entry in the Birth Certificate is made regardless of the opinion of the ex-husband, if the child’s mother agrees with this state of affairs. Moreover, even if the mother of a newborn informs the registry office employees that the ex-husband is not his father, they will not be able to enter the information required by the woman without presenting evidence. The presence of the former spouse is not required for the registration procedure. The man’s appeal to the registry office will not change the situation - the law in this situation is completely on the side of the ex-wife.

Why is the three hundred day rule necessary?

It is designed to protect the interests of women left alone after divorce. If at the time of divorce the wife was pregnant, her husband is responsible for raising the child and its maintenance. A woman is not obliged to prove in any way the paternity of her ex-husband; according to the law, the proof is the very fact of a legal marriage between them. Three hundred days is the maximum possible period of pregnancy.

This is no less important for the child himself, because thanks to this law he has the right to alimony and other assistance from the father, despite the fact that the parents’ marriage is dissolved.

What to do if the father is not the ex-husband?

It happens that the biological father of the child is not the mother’s legal spouse. This can happen for various reasons, for example, when a couple, without filing a divorce as expected, is busy organizing their personal lives separately. The only way to help in this delicate situation is to go to court.

If the period of 300 days has not yet expired after the divorce of the mother’s first marriage, and the child was born from the second spouse or another person, then paternity is established in court in accordance with Art. 52 of the Family Code of the Russian Federation.

According to the law, the child’s mother must go to court first and act as a plaintiff, and the ex-husband as a defendant. The actual father is involved as a third party. It is also possible for the mother and her de facto spouse – the father of the newborn – to go to court jointly. When filing a claim, you must submit the following documents:

• a copy of the claim provided to the defendant;
• a photocopy of the child’s birth certificate;
• a receipt from the bank confirming payment of the state fee;
• other evidence confirming paternity with attached copies for presentation to the defendant.

If a woman submits an application at her place of residence, she will also need a certificate from the child’s place of residence.

The procedure followed by the court to voluntarily establish paternity is simple. All parties confirm on record the circumstances indicated by the plaintiff, after which the surname, name and patronymic of the baby’s father are established.

Based on the court decision, the civil registry office makes adjustments to the entry about the parents of the newborn when registering the child in the birth register.

Under no circumstances should you listen to advice on how to find a loophole in the law and hide the fact of marriage. Many expectant mothers are advised to return their maiden name during a divorce in order to receive a new passport without a marriage record. In fact, this method cannot bring a positive result for the reason that records are not deleted from a single computer database, therefore, it will not be possible to lie about the fact that there was no first marriage.

How to avoid confusion?

When separating from your spouse and planning your future personal life in a new family, you should not neglect such a procedure as the official divorce. This will free both spouses from unnecessary problems in the future, because none of them wants to meet in court, especially on such a delicate matter. Having divorced, ex-husband and the wife can no longer think about how many days have passed since the divorce, but with peace of mind create new ones happy families. Of course, it is not always possible to act exactly as prescribed by law, but since family peace depends on this, it is necessary to take all measures to formalize the relationship.