A serviceman confirmed the maintenance of three stepsons through the court: the decision opens the way to discharge from service

The Rakhiv District Court of Zakarpattia region considered, in a separate proceeding, a case to establish the fact of children being supported. The application was filed by a serviceman who requested to establish the fact of supporting three minor children of his wife from previous relationships, as confirmation of this fact has legal significance for him as a basis for discharge from military service during martial law.

Circumstances of the case

The applicant was in a registered marriage with the mother of four children, one of whom is their common child, and three were born before the marriage. Information about the father of the three older children was entered into the birth records in accordance with part one of article 135 of the Family Code of Ukraine.

The applicant stated that after the marriage, the wife’s children acquired the status of his stepsons, live together with him as one family, and are actually supported by him. The biological father of the children does not participate in their upbringing or financial support, and his whereabouts are unknown. The applicant’s wife is on childcare leave until the child reaches three years of age and has no independent income.

To confirm his arguments, the applicant submitted a marriage certificate, birth certificates of the children, extracts from the State Register of Civil Status Acts regarding the entry of information about the father in accordance with article 135 of the Family Code of Ukraine, a certificate from the state enforcement service about the absence of enforcement documents for alimony collection, an act of actual cohabitation and upbringing of the children, a certificate of a large family, a certificate from the local government about the family composition and child support, as well as documents confirming his military service by conscription during mobilization.

Additionally, the case materials included an inspection report of the family’s living conditions prepared by the children’s services, according to which the family lives together, and the three older children have not received proper participation in upbringing and financial support from the biological father since birth.

The applicant justified the need to establish the relevant legal fact by stating that supporting three or more children under 18 years of age is a basis for discharge from military service according to the Law of Ukraine "On Military Duty and Military Service."

The applicant and his wife requested full satisfaction of the application.

The children’s services did not object to satisfying the application and supported the conclusions of the family living conditions inspection report.

The military unit submitted written explanations, noting that the stepfather’s obligation to support stepsons arises only under the conditions provided by article 268 of the Family Code of Ukraine, namely in the absence of the mother, father, grandfather, grandmother, adult brothers or sisters, or the impossibility of their proper support for valid reasons. The military unit’s representative also referred to the legal conclusions of the Supreme Court and the Eighth Administrative Court of Appeal regarding the legal nature of the stepfather’s obligation to support a stepson and noted that the mere fact of voluntary financial assistance does not always indicate a legal obligation to support. At the same time, the final resolution of the case was left to the court’s discretion.

Position and conclusions of the court

The court noted that according to articles 293 and 315 of the Civil Procedure Code of Ukraine, facts on which the emergence, change, or termination of personal or property rights of individuals depend may be established in a separate proceeding if the law does not provide another procedure for their establishment and there is no dispute over the right.

Referring to the legal conclusions of the Grand Chamber of the Supreme Court, the court emphasized that the establishment of legal facts in a separate proceeding is allowed provided that such facts create legal consequences for the applicant, cannot be confirmed in another way, and are not related to resolving a dispute over the right.

Analyzing family law norms, the court noted that the obligation of parents to support children is unconditional. At the same time, article 268 of the Family Code of Ukraine provides for the obligation of a stepfather to support minor and underage stepsons living with him in the absence of other persons able to provide proper support, provided he is capable of providing financial assistance.

Evaluating the evidence provided as a whole, the court established the fact of the applicant’s cohabitation with his wife and four children, his actual support of all the family’s children, the absence of participation by the biological father of the three older children in their upbringing and financial support, as well as the mother’s childcare leave.

The court separately noted that the fact of supporting one’s own child does not require proof, so the subject of consideration was the establishment of the fact of supporting three children of the wife from previous relationships.

Considering that the applicant serves in the military by conscription during mobilization, and establishing the fact of supporting three children under 18 years old has legal significance for him as a basis for discharge from military service according to subparagraph "g" of paragraph 2 of part four and the fifth paragraph of paragraph 3 of part twelve of article 26 of the Law of Ukraine "On Military Duty and Military Service," the court concluded the claims were justified.

As a result of case No. 305/418/26, the court satisfied the application and established the fact that the applicant supports three minor children of his wife. Court costs were left to the applicant.

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