Why do we need a sample statement on the establishment of the fact of kinship for going to court? How to use it correctly, what to look for, what are the features of considering cases in this category?
Reasons for going to court
Judges resolve disputes between citizens and organizations, in addition to this function, they have one more thing - the establishment of facts. An application to establish the fact of kinship is filed for the second purpose. Why do citizens file such a request in court?
The right to obtain citizenship, to acquire an inheritance, and other rights depends on the proof of the fact of kinship. In these cases, the reasons for the appeal are not exhausted, because in the life of people there are a variety of situations.
The court is the only court to resolve this issue. If there are no documents in the RAGS bodies and in the archives that would confirm the fact of kinship, then they turn to the judge.
For example, citizens who were born in the pre-war period, when processing documents, have no data on their birth, parents. Books of acts of record are either destroyed or damaged during the period of military operations.
Another option is to enter erroneous information. Citizens, not being knowledgeable in jurisprudence, and do not assume that a single mistake in writing their surname, name, patronymic can create difficulties in the future. Especially if the fact of kinship is determined by the chain of information. Because of this, samples of statements of fact of kinship have differences.
Preparatory stage
Note that the court comes to a clarification of the fact after the death of one of the relatives. An application for the establishment of a legal fact of kinship is filed after it became clear that there is no other way to confirm it. Preliminarily apply to the authorities of the RAGS, archives in cities or towns where the deceased person previously lived.
Handling requests is an inevitable part of the procedure. Even knowing for certain the absence of documents, the applicant must have official confirmation of this. The judge, like any official, first of all, relies on information reflected on paper.
The samples of statements on the establishment of the fact of kinship indicate the reason for the appeal. Those. the applicant turned to a notary public or to the migration department of the Ministry of Internal Affairs, where the need for an appropriate document became clear.
In a lawsuit or statement it is customary to refer to an oral explanation of officials or notaries, but for some judges this is not enough. And they ask for a letter stating that such and such a person really appealed and his question was not resolved or his decision was suspended due to the lack of documents on kinship.
Which court to apply to
The model court statement always indicates the district court. According to the Code of Civil Procedure, such cases are considered exclusively by district courts. If the application is submitted to the justice of the peace, he will either transfer the materials to the district court, or return the application with all the documents.
Usually it is sent to the court at the location of the notary or authority in whose decision the applicant is interested.
Production Features
An application to establish the fact of kinship is considered in the framework of a special proceeding. It has several differences. Firstly, there is no dispute, and secondly, the judge has freedom of action. He has the right on his own initiative to request documents and take other measures aimed at clarifying the facts of the case. Another feature: the applicant has the right to re-submit the application, and he will again be examined on the merits if a negative decision was made earlier on it. At the same time, he is not deprived of the right to appeal to higher authorities.
What is the difference with the lawsuit
The statement of claim on the establishment of the fact of kinship in its purest form does not occur. Claims are intended for litigation in court. That is, if you need to find out the fact as part of the lawsuit, then there is a dispute. For example, the question is raised about the right to a part in the estate, the cancellation of previously issued documents of other heirs. The applicant is called the plaintiff, all other parties are defendants and third parties.
Otherwise, if necessary, only reveal a fact, an application is submitted.
Document structure
Consider the structure of such a document:
- name of the court to which the application is sent;
- applicant (name, place of residence);
- interested parties (notary public, department of the Ministry of Internal Affairs on migration issues, etc., address of their location);
- a statement of circumstances that compelled us to confirm the fact of kinship, what measures have been taken to search for information, what answers and where were received;
- the reason why a court decision is necessary (inheritance, acquisition of citizenship, etc.);
- request for evidence, summoning witnesses;
- a request to the court to establish a fact indicating the degree of kinship, if necessary;
- list of copies of attached documents;
- copy of the power of attorney, if the interests are represented by another person;
- receipt of payment of state duty (at the time of writing, the amount is 300 rubles);
- Signature and date of application.
The template for establishing the fact of kinship is almost always marked with a copy of the power of attorney and the original receipt.
How to formulate requirements
The petitioning part of the application for the establishment of kinship is different. For example, I ask you to establish the fact that the name, year of birth, is the son of the name, year of birth. Other options are allowed. Ask to establish a specific degree of kinship. You can not use words that are not used in the law, for example, “dad” instead of “father” or “mother” instead of “mother”. Do not count on the court to correct the wording. As a rule, according to the wording of the requirement, a decision is made.
What documents are attached
In the samples of statements on the establishment of the fact of kinship, references from the archives and departments of the Civil Registry Office are mentioned as mandatory documents.
This is enough when it comes to direct kinship. If it is required to establish a further degree of kinship, copies of additional documents (birth, marriage, marriage, etc.) certificates are submitted that link the applicant to the deceased. Extracts from household books are attached to the case materials.
The consequences of errors in the filing or design
The sample application for the establishment of family relations indicates: the number of sets is submitted to the court according to the number of participants in the case. If at least one copy is missing, the court will leave the application without motion. Despite the fact that the rule relates to a claim, it is applied to all other applications submitted to the court as part of the civil process.
If this or other errors are made in the application that prevent the opening of the case, the judge in the determination, with reference to the norms of the law, indicates what exactly they consist of. The applicant is given a specific time period for their elimination. If it was not possible to meet this time, the materials are returned to the applicant. The statement, drawn up in full accordance with the law, is the reason for opening the proceedings and summoning the court for a meeting.
Terms of consideration
The entire period of the consideration of the case from the moment the materials are received by the court until the judicial act is passed cannot essentially last more than 2 months.
If the matter is simple and the applicant has all the documents in his hands, then one meeting is enough to make a decision. Then a month is given for its entry into force. If there are difficulties, the process may take several months. On average, it takes six months, starting from the day the lawsuit is filed and until the issuance of the decision with the reasoning part.
Review Procedure
The judge, opening the meeting, introduces himself. The secretary finds out who has appeared, checks the documents (passports, powers of attorney). The court then clarifies the rights and obligations of the participants in the process.
It is proposed to submit requests to the court (to request evidence through the court to call witnesses). The applicant or his representative explain why they cannot independently submit documents. When it announces a request to call witnesses, it fully indicates their full name, briefly informs what they can talk about.
Then the contents of the application are briefly described, the judge asks clarifying questions if necessary.
By agreeing to call witnesses, the judge takes a statement of responsibility for refusing to testify and for providing false information. The applicant asks questions first, then the judge.
After the materials of the case are announced, and the judge is removed to make a decision.
How it looks in reality
Consider an example of a statement establishing the fact of kinship. Citizen A. filed an application for the acceptance of the inheritance after the death of his mother. However, the notary lacks a birth certificate to complete the registration. All records were destroyed during the war. In addition, the mother married a second time and changed her surname. If the ORAPS extracts on the second marriage from the assembly books provided, then the birth certificate does not issue and can not issue. The case contains an extract from the household book.
In this connection, the applicant asks the court to accept the fact that the deceased citizen B. is the mother of citizen A.
Two local residents were involved as witnesses; they confirmed that they had long known the deceased and that the applicant was indeed her son.
The notary, involved in the status of an interested person, refused to issue a document on the refusal to register the inheritance, and in a letter to the court confirmed that the appeal had indeed taken place and that without a court decision it was not possible to complete the registration.
Finally
An application for establishing a legal fact is prepared in accordance with a whole list of requirements; it will not be accepted for consideration on the merits. The case will be opened if there are no documents confirming kinship in the archives.
The main evidence is the testimony of witnesses and answers from archives and authorities or from a notary public, depending on what the fact is established for.