O reconhecimento espontâneo de paternidade/maternidade de filho biológico falecido sem descendente

Abstract

The main objective of this dissertation is to study the possibility of paternal and/or maternal recognition of a deceased child with no descendants. It discusses whether the rule of conditioning posthumous recognition on the existence of descendants of the deceased child, contained in the sole paragraph of article 1.609 of the Civil Code, would be an impediment to establishing the bond of filiation. The hypothesis raised by this investigation is that it is feasible to spontaneously recognize the paternity/maternity of a deceased biological child without offspring, provided that the spontaneous expression of paternal/maternal will is submitted to the Judiciary. Initially, the nature of the fundamental right inherent in filiation is studied, emanating from the unavailability and essentiality of the kinship relationship established between the child and the father/mother. This is followed by research into the recognition of kinship, with an in-depth analysis of the rules regulating extrajudicial and judicial procedures for establishing paternal/maternal ties. Finally, the provisions and restrictions codified in art. 1.609 on the voluntary recognition of paternity/maternity were confronted, directly confronting the hypothesis outlined and concluding that it was confirmed.