In judicial practice, there is a set of cases on establishing the fact of kinship relations between individuals. Special complexity of such cases does not cause. Yet there are times when people are faced with the problem of establishing the facts of kinship fourth, fifth or sixth degree of kinship. This usually occurs when the grandchildren, for example, want to establish a relationship with cousins and grandparents to obtain the inheritance.
“Fifth place according to the law of inheritance – inherited following relatives of the deceased: the grandchildren (second degree), grandchildren, great-grandmother, great-nephews (third degree), cousins, cousins, grandchildren; cousins, grandfathers and grandmothers, and cousins (fourth degree of kinship) cousins, grandchildren, great-grandparents and grandparents, cousins, nephews, cousins, aunts and uncles, second cousins and sisters (the fifth degree of kinship), second cousins and sisters; second cousins, great-grandchildren, great-grandparents and great-grandmother’s second cousins, second cousins, nephews, second cousins, aunts and uncles, cousins, great-grandchildren; great-great-grandfathers and great-grandmother (sixth degree of relationship). ”
Difficulties arise in the fact that there are no documents about the birth of the grandfather or grandmother, great-grandfather or great-grandmother, and trace the relationship is very difficult. Try to understand what we can do in this situation.
First of all, let me remind you that the facts of a legal nature, – a fact with which the law binds the emergence, change or termination of legal relations. Such facts are set in a special procedure. In a special procedure to consider cases on establishing the facts, if:
– By law, these facts give rise to legal consequences, that is, they determine the occurrence, change or termination of personal or property rights of citizens;
– The current legislation provides for a different procedure for their establishment;
– The applicant has no other way to obtain or recover a lost or destroyed document certifying the facts of legal significance;
– Establishment of the fact is not associated with the subsequent resolution of the dispute on the right.
The application of a natural person to establish the fact of legal significance, submitted to the court at his place of residence. The statement says:
1) a fact the applicant has requested to install and for what purpose;
2) the reason for inability to obtain or restore documents certifying this fact;
3) evidence confirming the fact.
Attached to the application evidence confirming the circumstances set out in the application, and a certificate of inability to recover lost documents.
Applications for establishing the facts relating to the rights of legal entities, within the jurisdiction of the court and can not be considered in the order of action proceedings.
The fact that the familial relationship between individuals is established in court, if this fact directly involves legal consequences. For example, if a confirmation of this fact is necessary for the applicant to the bodies perform notarial acts, certificates of inheritance, registration of rights to a pension for loss of breadwinner.
These statements must comply with both the general rules on the content and form of the statement of claim, and the requirements for its content. If the statement does not specify what kind of fact seeks the applicant, the reasons why it is impossible to obtain or recover a document certifying this fact, what evidence this fact is confirmed or the statement is not enclosed certificate of inability to obtain or restore the required documents, the judge makes a decision about leaving statements without movement and provide the applicant a period to correct the deficiencies. In the case of non-compliance of these instructions application is considered not filed and returned to the applicant, as the judge shall issue a reasoned decision.
So, with regard to our situation. In this case, we can advise applicants to request and receive archival information and assembly records of births, to request an extract from the State register of civil status of citizens of the state registration of birth documents. Practice shows that in such certificates and demands are different names and patronymic of the grandfather or great-grandfather, who recorded his parents in other families (eg in some documents written Warka, in other barbarians; or Feodoska and Theodosius; or Mayor and Jakimovich), frequent that is not the same name, and patronymic.
In such cases, you can order an expert opinion (linguistic expertise) for fixing and denominativnyh colloquial variants of personal names, which reflect the oral conversation practice and the practice of documenting the different dialectical areas of Ukraine in order to identify personal names.