Filiation and minors in Italy
Filiation represents a fundamental pillar of family law, governing the legal relationships between parents and children, with particular attention to the protection of the rights of minors.
Italian legislation on filiation and minors has been deeply reformed in recent years, eliminating distinctions that in the past created inequalities.
Before the reform of filiation, introduced by the Legge 219/2012 and the Decreto Legislativo 154/2013, there was a separation between “legitimate” children, born within marriage, and “natural” children, born to unmarried parents. This distinction, which for years had influenced the successoral and personal rights of minors, has been overcome. Today, the Codice civile simply uses the term “children”, without further qualifiers, ensuring equal rights for all.
A relevant aspect of the reform concerns article 74 of the Codice civile, which defines kinship as a bond uniting persons descending from a common ancestor, regardless of whether the birth took place within or outside marriage, or is the result of an adoption.
However, the kinship with the family of the adopters does not apply in cases of adoption of adults. This regulatory amendment has had significant repercussions on the successoral level, extending the kinship bond also to relatives of the parent, such as grandparents, uncles, aunts and cousins, even for children born outside marriage.
- Filiation and minors
- Disavowal of paternity
- Judicial declaration of maternity and paternity
- Claim of the status of child
- Administration of the minors assets
- Parental responsibility
- International child abduction
- Filiation for same sex couples
- Assisted fertilisation and medically assisted procreation abroad
Acts of ascertainment of filiation
The ascertainment of filiation is the procedure by which the legal bond between parents and children is formally recognised. The reform has standardised the procedures for children born in marriage and children born outside it, while retaining some operational differences that deserve attention.
Children born in marriage
For children born during marriage, the law presumes that the mother’s husband is the father, unless evidence to the contrary is provided. This principle, known as the presumption of paternity, is based on specific time-related criteria. A child is considered to have been conceived during marriage if born between 180 days after the celebration of the wedding and 300 days after its termination.
However, this presumption may be challenged in specific situations, such as legal separations or situations of prolonged non-cohabitation between the spouses.
Where there are challenges, it is possible to bring an action of disownment of paternity, which allows to demonstrate the absence of biological ties between the child and the mother’s husband. The child as well, once he or she has reached the age of majority, may bring legal actions to ascertain his or her status of legitimate child.
Children born outside marriage
For children born outside marriage, the recognition of filiation requires a formal act.
This may take place at the moment of birth or subsequently, through a declaration before the registrar of civil status, the judge or by means of a public deed or will. Parents married to other partners may also recognise a child born outside marriage, either jointly or separately.
Where one of the parents opposes the recognition, the other may turn to the judge, who will assess the situation and, if necessary, hear the minor (if he or she is at least 12 years old or has sufficient capacity of discernment). The judge may adopt temporary measures to ensure the protection of the minor during the proceedings.
A particular feature concerns minors who have reached the age of 14: their consent is necessary for the recognition to produce legal effects. Furthermore, parents who have not reached the age of 16 may recognise a child only with the authorisation of the judge, who always assesses the interest of the minor.
The recognition of the filiation relationship
The recognition of the filiation relationship represents a formal and irrevocable declaration that establishes the legal bond between parents and children. Even where made through a will, the recognition takes effect from the death of the testator, regardless of whether the will is subsequently revoked.
In addition to voluntary recognition, it is possible to obtain a judicial declaration of paternity or motherhood in cases where a parent does not accept to recognise the child. In these situations, the judge may rely on genetic evidence or other elements, such as the conduct of the alleged parent towards the minor (for example, regular financial gifts, interest in education or other acts demonstrating a parental relationship).
Motherhood, in general, is easier to prove, as it is based on the evident biological bond between mother and child. Nevertheless, even in this case, disputes may arise that require the intervention of the judge for an accurate assessment.
Typical scenarios / Case studies
The typical scenarios have been developed by combining the most significant family law situations that our firm regularly handles, creating structured and realistic examples designed to help readers better understand and navigate their own legal matters. The case studies, on the other hand, are based on real cases handled by our firm, with all personal data and identifying details anonymised to protect client confidentiality.
Registering a cohabitation agreement and regularising the status of a foreign partner
A couple living in Rome, consisting of an Italian citizen and his foreign partner without valid residence documents, sought legal protection for their relationship. An urgent application under Article 700 of the Italian Code of Civil Procedure was filed to safeguard their cohabitation, followed by proceedings to obtain an EU family member residence card.
Adult adoption to legally recognise a de facto family relationship
A United States citizen living in Rome sought to formalise a long standing family relationship with his uncle by marriage through adult adoption. Proceedings were brought under Articles 291 et seq. of the Italian Civil Code to obtain legal recognition of their established family bond.
Cohabitation agreement for an Italian Brazilian couple: protecting assets and securing residence rights
An Italian entrepreneur and his Brazilian partner had been living together in Milan for three years. Their situation involved three interconnected legal vulnerabilities relating to immigration, asset protection and succession planning, all addressed through a coordinated legal strategy.
Adoption in Colombia: an Italian couple fulfils their dream after a three year journey
A couple married for eight years embarked on an international adoption in Colombia. The procedure involved two legal systems, three Italian institutions and the Colombian Central Authority, requiring careful coordination throughout every stage of the process.
Succession involving heirs in four different countries: coordinated management across Italy, the United States, the United Kingdom and Switzerland
An Italian entrepreneur left assets located in Italy, the United States and Switzerland, with four heirs residing in four different countries. The matter required the parallel coordination of four legal systems and four tax regimes.
Adult adoption of a partner’s child: legal recognition of a twenty year family bond
A fifty eight year old man seeks to adopt his wife’s thirty year old son, whom he has helped raise for twenty years. Although the relationship was genuine and long established, it had no formal legal recognition, with significant implications for the biological children’s inheritance rights.
Challenging a will for infringement of forced heirship rights: €800,000 recovered for the heirs
Two children inherited only €20,000 each under a will that left almost the entire estate to their late father’s second wife. An action to enforce their forced heirship rights was successfully resolved through mediation.
Succession planning for a family business: transferring a €3 million business to the next generation
A sixty two year old entrepreneur needed to transfer ownership of a company employing fifty people to the son who had been managing the business, while safeguarding the interests of his daughter, who had chosen a different career path. A family agreement and a holding structure ensured business continuity and long term stability.
International adoption by a single parent: when the law opens a path few people know exists
A forty five year old single woman embarked on an international adoption. Although legally possible, this route remains little known and requires a carefully planned legal strategy from the very first stage, beginning with the application for the certificate of suitability.
Digital inheritance: recovering cryptocurrencies and digital assets after death
A professional passed away leaving more than €600,000 in cryptocurrencies held across multiple wallets and exchanges, without providing any access instructions. A substantial digital estate was at risk of being lost forever.
Legal name change for a transgender person: aligning official documents with gender identity
A thirty two year old professional, who had been undergoing hormone therapy for eight years, still had official documents bearing the male name assigned at birth. This discrepancy repeatedly forced unwanted disclosure of her gender identity in professional, banking and administrative settings.
Legal gender recognition and the update of more than 20 official documents: from court judgment to a new legal identity
A forty five year old executive had already obtained a court order granting legal gender recognition but was then faced with the real challenge: coordinating the update of an identity card, driving licence, university degree, employment records, mortgage documentation and insurance policies across multiple authorities, each with different procedures.
Legal advice for filiation and minors in Italy
The handling of issues related to filiation is complex and requires a deep knowledge of national and international legislation, as well as a sensitive and tailored approach. This is where the role of the lawyer becomes fundamental.
A law firm specialised in family law does not limit itself to providing technical and legal support, but also acts as a guide for families that find themselves having to deal with emotionally difficult situations, such as disputes over filiation or the need to protect the rights of a minor. The figure of the lawyer is crucial in order to:
- Ensure compliance with regulations: filiation is governed by complex and constantly evolving laws. A lawyer ensures that every step complies with the law, avoiding errors that may compromise the rights of the parties involved.
- Protect the interest of the minor: the main objective of any legal action in this area is to ensure the well-being of the minor. The lawyer represents a point of balance between the needs of the parents and the higher interest of the child.
- Handle transnational issues: for foreigners residing in Italy or persons residing abroad, the management of filiation may entail conflicts of law between different legal systems. A lawyer specialised in international law can resolve these complexities, harmonising the regulations at stake.
- Represent the parties in court: in cases of disownment of paternity, judicial declarations of motherhood or conflicts on the custody of the minor, the lawyer is indispensable to best represent the rights and interests of his or her client.
- Provide preventive advice: many problems can be avoided thanks to timely legal advice. A lawyer can help plan legal strategies to protect family and patrimonial rights, also with a view to possible future disputes.
The system for the protection of minors represents the beating heart for granting the rights of childhood and adolescence. Whether it is a matter of promoting these rights in the ideal context for the growth of children and young people, that is the family, or of supporting it in moments of temporary difficulty in fulfilling its educational task, or even when it becomes essential to identify alternative solutions in situations of extreme gravity, the model adopted by a State to ensure the well-being and balanced development of the youngest constitutes one of the most crucial and delicate challenges for the legal system.
Ensuring this objective requires the use of the best resources and significant investments, because what is at stake is safeguarding the most important treasure of a community: human capital, the pillar of its present and future.
It is a fundamental right of children and adolescents, as has been repeatedly stated, to grow up within their own family. Alongside this, there are equally crucial rights: the right to education, to instruction, to health and to protection against any form of violence.
However, there are circumstances in which these rights may come into conflict, to the point of becoming hardly reconcilable. In these moments, it becomes essential to wonder how the legal system should intervene, with which instruments to address assessments and compromises that profoundly affect the intimate sphere of the persons involved.
The cardinal point for addressing these complex situations cannot but lie in a weighed balancing, necessary at every stage and level of the decision-making process.
Boschetti Studio Legale, with consolidated experience in family law, also international, in particular in the area of filiation and minors, is able to offer comprehensive and tailored support. From preliminary advice to representation in court, we work alongside our clients to ensure high-level legal protection. If you wish to deepen the topic or you need a lawyer for assistance in this delicate matter, contact us: the protection of your family is our mission.
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What is meant by filiation relationship?
The filiation relationship is the legal bond that unites a child to his or her parents, ensuring mutual rights and duties. It concerns personal aspects, such as education and the maintenance of the minor, and patrimonial aspects, such as successoral rights. This relationship may be established biologically or through recognition, adoption or judicial declaration.
What does filiation mean?
Filiation is the legal institution that identifies and governs the relationship between parents and children. It includes both biological and legal bonds, as in the case of adoption. It is the basis of the rights of the child, including maintenance, education and patrimonial protection.
What is meant by minors?
By minors are meant all persons who have not yet reached the age of majority, set at 18 years in Italy. Minors enjoy specific rights, such as the right to education, to maintenance and to protection, and it is a legal obligation of parents and guardians to safeguard their interest.
How is filiation proven?
Filiation is proven by the birth certificate or through recognition by the parents. In the absence of documentation, it may be ascertained by judicial declaration, supported by genetic or haematological evidence, or by other elements such as the conduct of the alleged parent towards the child.
