Child Legitimation

Child Legitimation

Child Legitimation

CHAPTER I

Child Legitimation

Child legitimation in Thailand is explained below as this is the part of the Civil and Commercial Code which covers the issues. Firstly you can see the reasoning and how the legal process works. Many of the Sections would not be close to what you would find in the Western legal system as Thailand has a mixed system. This to accommodate Thai traditions and customs. You can see these also in the sections on divorce in Thailand.  

This translation again should not be seen as legally binding or used as legal advice or guidance. This text on this page has been provided for educational and comprehension purposes only and contains no legal authority. We will assume no responsibility for any liabilities arising from the use and/or reference of this text. Speak to us online or via WhatsApp or application Line for proper legal advice. Finally, speak to our Thailand family lawyer if you do not fully comprehend family law in Thailand compares to your home country. You can also the other Chapters in the Civil and Commercial Code in the country. See also the law on Thai divorce law as well as community of property and marriage in Thailand.

 

Section 1536

When a child is born of a female in wedlock. This or within 310 from the date of divorce the child will be presumed to be the legitimate child of a male who is the husband or used to be the husband.

This applies to a child born of a female before a final judgment of divorce has been issued by the court or within 310 days from such date.

Section 1537

Where a female has remarried in violation of Section 1453 and a child is born during the period of 310 days from the date of divorce it is presumed that the child is the legitimate child of a male who is the new husband also that the presumption under Section 1536 that the child is the legitimate child of the former husband shall not apply, unless deemed otherwise by a court.

Section 1538* 

Where a marriage violates Section 1452. The child born during such a marriage the child will be presumed to be the legitimate child of the husband to who the female has later married by marriage registration.

If the marriage violates Section 1452, if there is a final judgment declaring that the child is not the legitimate child of the husband who the female married by registration, the presumption in Section 1536 shall apply.

The provision of paragraph one is for a child born within 310 days from the date of a final judgment of the divorce due to the violation of Section 1452.

Section 1539

In a child is presumed to be the legitimate child of the person who used to or is the husband under Section 1536, Section 1537, or Section 1538, the male can disavow the child by taking legal action against the child and the mother jointly. Then prove that he did not cohabit with the mother of the child during the period of conception between 180 days to 310 days before the child’s birth. This or that he could not be the father due to other reasons.

If the mother is not alive then the action will be against the child as the sole defendant. If the child is not alive where the mother is still alive or not, an application for a declaration that the child is not his child maybe be applied for. Where the mother or an heir of the child is alive. Then the court will send a copy of the application to such person. If deemed appropriate, the court may also send a copy of the application to a public prosecutor for consideration. This is for further proceedings on behalf of the child.

Section 1540* (Repealed)

Section 1541

The male who is or used to be the husband cannot disavow the under Section 1539 if it appears that he reported the birth of the child as his child.

Section 1542*

The man who used to be or who is the husband must bring the application to disavow within 1 year from the date of the child’s birth being known. The can be no action after 10 years have elapsed from the birth of the child.

Where the court has ruled that the child is not the legitimate child of the new husband under Section 1537 or who was the husband of the last marriage under Section 1538. If the male who is or used to be the husband and is under the presumption that the child is his legitimate child under Section 1536 wants to bring an action for disavowal, it must be done within 1 year of the ruling.

Section 1543*

Where the man who is or used to be the husband brought an action for disavowal of a child and dies before final judgment, any person entitled to inherit together with the child or who would lose the right to inherit due to the birth of the child may apply or may be summoned to be the party in the action in the place of the deceased male who is or used to be the husband.

Section 1544*

Where disavowing a child, any person entitled to inherit with the child or any person who would lose the right to inherit due to the birth of the child can bring an action as follows:

(1) A male who is or used to be the husband dies before the lapse of the period in which he could have brought the action.

(2) The child was born after the death of a male who is or used to be the husband.

The disavow action under (1) has to be brought within 6 months from the death of the male who is or used to be the husband had been known. The disavow under (2) is also within six months, however from the date on which the birth of the child was known. Note that no such action can be brought after 10 years have elapsed from the birth date of the child.

Also note the provision under Section 1539 shall apply to an action for disavowing under paragraph one, mutatis mutandis.

Section 1545*

If a child discovers that they are not a blood-related child of a male who is the husband of his or her mother, the child can request action of disavowing from a public prosecutor.

Action under paragraph one, should the child know that they are not the child of the male who is the husband of his or her mother before attaining majority. Then a public prosecutor may not bring an action after one year has elapsed after the child has attained majority. If the child knows after attaining majority, then a public prosecutor may not bring an action after a year since the child found out.

No action for disavowing a child may be brought after 10 years after attaining majority.

Section 1546*

Any child born of a female who is not married will be deemed to be the legitimate child of the female unless otherwise provided by law.

Section 1547

The child born to unmarried parents will be legitimate only when the parents marry or when the father has applied to the court for registration.

Section 1548*

The legitimation of a child can only be obtained with the consent of the child and the mother of the child.

If they do not come to give consent in the presence of a registrar. Then the registrar will notify the child and the mother of the child of the application of the father for registration. If they don’t object or do not give consent within the 60-day period from receipt of the notification. Then the child or the mother will be presumed not to give consent. If they are outside of Thailand, then the period will be for 180 days.

If the child or mother objects to the applicant being the father, refuses to give consent, or is unable to give consent, the registration of legitimation will require a court judgment.

Should the court issue a judgment allowing the registration of legitimation of the child. The registrar will accordingly proceed to register the legitimation on the presentation of the court order.

Section 1549

When the registrar notifies the mother and child of the application for the legitimation of a child under Section 1548 irrespective if they have objected to the registration within 90 days from receipt of this notification they may notify the registrar that the applicant is not suitable for excising the parental power, in part or whole.

Even with the notification of the child or the mother under paragraph one, the father of the child, even though the registration of legitimation under Section 1548 has been made, may not exercise parental power until the court issues a judgment allowing the father to exercise parental power, in whole or in part. (You will note that the notification does not give any parental power in part or whole.)

Should the court issue a judgment declaring that the applicant for the legitimation of the child is not suitable for exercising parental power. The court may issue a judgment in the same case to determine a person who shall exercise parental power or who shall be a guardian. This can be in whole or in part.

Section 1550* (Repealed)

Section 1551 

Where there is an objection to the registration of legitimation. Even when the applicant is the father of the child, with a judgment declaring that the applicant is the father of the child, the child or the mother of the child may apply to the court (this in the same case) for a judgment declaring that although the applicant is the father of the child, he is not suitable for exercising parental power, in whole or in part. In this case, the provision of paragraph three of Section 1549 shall apply, mutatis mutandis.

Section 1552* 

The court can appoint a person to be a guardian in whole or part where the child has no mother or her parental power has been forfeited. This has to be done before the application for legitimation is heard. The applicant (the father) can apply to have the guardianship revoked in whole or part (when the legitimation is allowed) and allow the father parental power. If the court sees that the parental power of the father is more favorable than the guardian. It may revoke the guardianship in whole or in part and then allow the father to exercise parental power. (The Section is small however covers many issues. If there is no mother there must be a guardian. Once legitimated you could also request a guardianship.)

Section 1553* (Repealed)

Section 1554

The interested person can apply for revoking the legitimation of a child for reason that the person is not the father. This must however be brought before the court within 3 months of knowing about the registration. No action may be brought after 10 years from the date of the legitimation registration.

Section 1555

With the application for the legitimation of the child, it will be presumed that the child is the legitimate child of the male if one of the following occurred: (The presumptions are way off from the Western legal system)

 (1) Where the woman was raped, abduction, or otherwise illegal confinement who is the mother during the period when conception could have taken place;

(2) Where there was a sexual kidnapping or seduction where the mother during the period when conception could have taken place;

(3) Also where there is a document (see what would be acceptable) of the father showing that the child is his child;

(4) Where it appears in the birth register that the child is his child as evidenced by the father’s reporting of the birth or conniving in such reporting;

(5) Where the father and mother openly cohabited during the period when conception could have taken place;

(6) Where the father had sexual intercourse with a female who is the mother during the period when conception could have taken place and there is a reasonable cause to believe that the child is not the child of another male;

(7) Where there are circumstances where it is generally known that the child is his child.*

The circumstances where it is generally known that the child is his child shall be considered from the fact showing the relation between the father and the child, as evidenced by the child’s relation with the family to which the child claims to belong, such as the father’s provision of education or maintenance or the father’s consent to the child’s use of his surname or otherwise.

In any of the above cases, if it appears that the male is found unable to be the father of such a child, the case shall be dismissed.

*You will note that (7) has been amended by the Civil and Commercial Code Amendment Act (No. 19), B.E. 2551 (2008).

Section 1556

If the child is a minor and has not reached the age of 15. Then a legal representative of the child can bring the action of legitimation. If the child does not have one then a close relative or public prosecutor can apply for the appointment of a specific representative to bring about the action.

If the child is 15 years of age then the child can bring the action by himself or herself without obtaining consent from the legal representative.

If the child has reached the age of majority then the application must be brought within 1 year of obtaining majority.

Where the child dies during the time the child had the right to bring the application for legitimation, the child’s descendants may bring such action. If the descendent knows the reason for the application before the death of the child then they can apply for the legitimation within 1 year of the child’s death. This but not after 10 years have elapsed from the date of the child’s death.

In an action for the legitimation of a child when the child’s descendant is a minor, the provisions of paragraph one and paragraph two shall apply, mutatis mutandis.

(The last paragraph is very important as the child’s descendant could very well be a minor as well. This would be very rare but not impossible.)

 Section 1557*

The legitimation of a child under Section 1547 takes effect from the date of birth, but may not be asserted to prejudice the rights of third parties who are in acting in good faith. This is during when the child was born until such time when the parents have been married or the father has applied for the registration of the legitimation or a court has issued a final judgment declaring that the child is his child.

Section 1558

The application for the legitimation of a child of a deceased is brought within the prescription period in respect of inheritance. If the court has issued a judgment declaring that the child is the legitimate child of the deceased, such child shall be entitled to inherit in the capacity of a legal heir.

Where the deceased estate has already been divided, then unjust enrichment shall apply, mutatis mutandis.

Section 1559

The registration of legitimation of a child which has been made may not be revoked.

Section 1560

A child born during the marriage which has been annulled by the judgment will be deemed to be legitimate.