LA PROTECCIÓN DEL MENOR EN EL SENO FAMILIAR: EL STATO DE FILIAZIONE EN EL DERECHO CIVIL ITALIANO.

Abstract

Even though Italian law ensures presumable full equality between the children born of parents married to one another and the children born of parents not married to one another, it continues to uphold an unquestionable difference between the categories of legitimate child and natural child. It may be gathered from current legislation that legitimate children are those whose procreation takes place between spouses within a marriage. The law recognises that marriage can determine the personal status of any children conceived by the spouses, as marriage entails the obligation of fidelity and with it the exclusion of other sexual relations. This permits legislation to affirm that the husband is the father of any child conceived in marriage. Italian law accepts a plethora of mechanisms for proving filiation. Legitimate filiation can be proved by registration of the birth or, in lieu thereof, by the child's possession of status as a child of the family, or by the other means of proof provided for in the Civil Code. These means of proof are organised hierarchically; thus, possession of status as a child of the family acquires relevance only when there is no proper registration of birth, and the other means of proof are taken into consideration if there is no registration of birth or possession of status. Lastly, the expression «action to establish status» refers to the mechanism whereby a court is asked for a ruling on the status of a person. The types of action regulated by law for the establishment of legitimate status are: action in ignorance of paternity, action to challenge legitimacy and action to claim legitimacy. They are all aimed at obtaining a judicial pronouncement on status as a legitimate child.