Childhood and parenthoodParentage of children

Rights of children born outside wedlockAre the same as of those children born in marriage.

Parentage of childrenMotherhood

Medical certificates Testimonies Other proofs Exception: surrogate motherhood

Fatherhood In marriage or 280 days after – a husband of the mother Outside of marriage – by common application Without the mother – application of the father with the consent of the organ of tutorship

and guardianship or court

If the father denies fatherhood The court makes a decision on fatherhood – by the request of the mother, a tutor or a

child him/herself (18).

Contesting parenthood Only in court By the request of a person registered as a parent By the request of a real parent By tutor or guardian of a child By the child him/herself (18)

Children’s rightsParental rights and responsibilities

Sources• Convention on the Rights of the Child 1989 (ratified in 1994)• Agreement of the CIS countries of the retrieve of minors in the countries of their

permanent residence• Administrative Code• Civil Code• Criminal Code• Law on medical and pedagogical correction support of children with limited capabilities• Code on marriage and family• Other laws and acts.

A childevery human being below the age of 18 years

Main rights of a child:Non-property rights

• The right to live and receive education in family• The right of a child to communicate with parents and other relatives• The right to express own opinion

• The right for a name, patronymic name, surname• The right for protection of rights

Property rights

• The right for parents’ maintenance• The right to owe property• The right to receive profit• The right of inviolability of property

Main principles of children’s rights protection:• Non discrimination• Respect towards child’s individuality• Free expression of child’s views• Respect towards child’s freedom of thought and religion• Freedom of associations and peaceful meetings• Inviolability of private life, family life, property, mailings• Possibility of health protection and healthy life style

Parental rights and responsibilities• Obligation to take care about the child’s health• Right and obligation to educate the child• Obligation to provide the possibility for a child to receive school education• Obligation to represent and defend child’s interests• The right to communicate with a child for a parent who lives separately• The right to receive information about a child for a parent who lives separately• The right to claim back the child from a person who retains the child without legal

justification.

Principles of exercising of parental rights• Parents have equal rights and responsibilities towards children• Parental rights end with attaining by a child the age of 18 (22) or after a child gets

married• Questions which regard education of children are to be solved by a mutual accord

between parents considering interests and opinion of a child• Parental rights are to be exercised in child’s interests• Methods of education should exclude rude, cruel, humiliating ones, insults and

exploitation of children• Place of residence of a child as well as methods of education and frequency of contacts

are to be determined by mutual accord between parents in a case of separation.

Ceasing of parental rights• A parent persistently does not fulfill parental obligations (for ex. alimony)• Without significant reasons a parent refuses to take the child from the birth

establishment, a hospital etc.• Parental rights abuse• Cruelty towards children• A parent is recognized as alcoholic- or drug addicted in way provided for by the law.

Procedure of ceasing of parental rights

• Only in court• With participation of prosecutor and state organ of guardianship and tutorship• By the request of one of the parents, organization dealing with children’s rights or by the

action of prosecutor.

Consequences of ceasing of parental rights• Loss of all rights which derive from the parenthood• Loss of rights for maintenance from children• Loss of rights for all benefits and allowances which derive from parenthood• Does not result in loss of obligation to maintain the child.• The court decides if the child should continue living with the parent.

Limitation in parental rights• It is dangerous for a child to be left with the parent – by circumstances which do not

depend on the parent• It is dangerous for a child to be left with the parent, but there are no sufficient grounds for

ceasing of parental rights.

Procedure of limitation of parental rights• Only in court• With participation of state organ of guardianship and tutorship and the prosecutor• By the request of close relatives, organizations dealing with children’s rights, pre-

scholastic and scholastic organizations or prosecutor.

Consequences of limitation of parental rights• Loss of right for education of the child• In some cases loss of the right for allowances which derive from parenthood• Does not result in loss of obligation of maintenance.

Immediate taking away of a child• Organ of guardianship and tutorship can take away a child from his/her parents in a case

of a danger for child’s life• Then:

– To inform prosecutor– To provide the child with temporary place to live– Within 7 days to make an action about ceasing/limitation of parental rights.

Tutorship and guardianshipGuardianship and tutorship body

takes care about children and represent their interests in a case if:• The child’s parents are dead• The parents’ parental rights are ceased or limited• The parents are active incapable• The parents are ill• The parents are missing for a long time• The parents avoid the child’s education and representation of child’s interests• Other cases of lack of parents’ care.

How such children are discovered?• Any person can inform the guardianship and tutorship body (3 days to control)

• Officials of schools, kindergartens, hospitals etc. must inform the guardianship and tutorship body.

What happens with such children?• Adoption by a family• Guardianship or tutorship by a family• Patronage by a family

If family education is not possible – • Children’s houses and other establishments for orphans.

Guardianshipis established upon

• children of the age under 14• people with ceased active capacity• property of children under 18, property of a person with ceased or limited active

capacity, property of a dead person, person recognized as dead or as missing.

Tutorshipis established upon

• children from the age of 14 to 18• people with limited active capacity• people who due to their illness cannot fulfill their duties.

Who can be tutor or guardian?A person over 18 of any gender except:

• active incapable or limited in his/her active capacity• parents with ceased or limited parental rights• person who, because of misbehavior, was dismissed from the position of tutor or

guardian• ex-adopters, if the adoption was cancelled by their guilt• those who cannot fulfill their obligations as tutors or guardians due to an illness.

How tutor/guardian is appointed?• By the GTB in 1 month term

• Only with the consent of the tutor/guardian-to-be

• Priority is given to the spouse, parents, relatives and other close people

• There can be one tutor for more people

• Personal qualities and possibilities are to be taken into account

• If the tutor- or guardian-to-be is married, the spouse’s consent is required

• If the child is in a children’s house, his/her tutor/guardian is the administration of the children’s house.

Guardianship and tutorship-2

PatronageResponsibilities of guardians and tutors

• Guardians/tutors are legal representatives of minors/people with limited or ceased active capacity

• Exercise all legal actions (transactions, contracts) in the name of the ward• Take care about their health, education, protect ward’s interests• Guardian/ tutor is not obliged to maintain the ward (pensions, allowances, minor’s

property)• Guardians/tutors of minors are obliged to live together with the minor, unless the child is

living in children’s house• Once a year inform GTB about child’s matters.

Guardianship over ward’s property• Fruits and profit of the property of the ward can be used only for his/her needs and only

with the consent of GTB• Guardian/tutor and members of his/her family cannot make bargains with the ward,

except different types of donation.

Dismissal of guardians/tutors• If GTB returns the minor to his/her parents/adopters• If the minor is put in a children’s house• By the guardian’s/tutor’s request if there are significant reasons• GTB can dismiss a bad-faith guardian/tutor.

PatronageA form of education according to which children are transferred to a family which agrees to educate the child, on the basis of the contract of patronage.

Patronage agreement contains:• Conditions of education of the child• Rights and responsibilities of the family• Rights and responsibilities of GTB• Period for which the child is being transferred to the family.

Patronage agreement can be terminated:• In a case of significant reasons – by the request of the patronage-family• In a case if the conditions of the education of the child are changed• In a case if the child is returned to his/her parents or if the child gets adopted.

How the child is being chosen for patronage• By the family, with the consent of the GTB• It is not allowed to separate brothers and sisters, unless it is done in their interest• The child’s name is to be taken into account. If the child is over 10 years – only with

his/her consent.

Maintenance of the child by patronage agreement• Financed from the state budget• The family can require assistance from the GTB• The GTB has the rights to control the fulfillment of the patronage agreement.

Alimony obligations in familyAlimony responsibilities

• Parents towards children (*)• Children towards parents (*)• One spouse towards the other spouse (*)• Brothers/sisters towards brothers/sisters• Grandparents towards grandchildren• Grandchildren towards grandparents• Wards towards educators• Stepchildren towards stepparents• Other relatives.

Parents towards children• If there is no agreement on alimony between parents the amount of maintenance money

is:• 1 child – 1/4• 2 children – 1/3• 3 and more children – 1/2 of parents’ income• (the share can be reduced or increased by the court’s decision and can be calculated a

fixed sum of money to pay)

Disabled children of age• Parents are obliged to maintain their disabled children of age• The amount of such maintenance is determined by the court• The court can decide on sharing of additional expenses.

Children towards parents• Able-bodied children of age are obliged to maintain and to take care about their disabled

parents• If there is no alimony agreement, the maintenance can be recovered through the court• The amount of maintenance money is determined by the court• Children do not have to pay alimony for parents whose parental rights were limited or

ceased• In some cases children have to bare additional expenses determined by the court

Mutual maintenance of spousesIf there is no alimony agreement and the spouse refuses to pay maintenance money, alimony can be recovered through the court by:

• Disabled spouse who is in need• The wife – during pregnancy period and three years after the birth of the child• Spouse in need who takes care about a disabled child – up to the age of 18.

Mutual maintenance of ex-spousesAlimony from an ex-spouse can be recovered by:

• The wife – during pregnancy period and three years after the birth of the common child• Ex-spouse in need who takes care about common disabled child• Disabled ex-spouse in need, who became disabled during marriage.

Limitation or liberation of a spouse from the alimony obligation• If a spouse became disabled due to alcoholic or drug abuse or due to commitment of an

aforethought crime

• Short term of marriage• Misconduct of the spouse who is recovering the alimony• If the spouse who has right for alimony enters into new marriage• Elimination of the grounds for alimony.

Court procedure in recovering alimonyWhen?

Any time Alimony are recovered from the moment when the action to the court was made For the past – 3 years before the action, if there were other attempts If the payer of alimony was researched – all the period of research

Employer is obliged To retain alimony from the salary of employee who is to pay alimony (court’s decision or

alimony agreement) To inform the receiver of alimony about dismissal, change of place of work by the

employee – debtor To inform the receiver (in a case of alimony for minor children) about additional wages

or other income.

Alimony is recovered from Salary. If it is not enough

Money in bank accounts or other accounts

Property

Amount Share in salary/fixed sum of money If recovered for the past period and there are no information about salary in that period –

average salary in Kazakhstan in that period (can be changed by the judge) If the parent-debtor of minor child was researched – alimony+10% to the state budget.

Decreasing or canceling of the debt By the agreement of the parties (except alimony for minors) By the court’s decision, by the claim of the debtor, if there were significant reasons of

non-payment (illness) or is unable to extinguish the debt.

Delay in payment of the debt By the agreement or 0,1% of the remaining debt for every day of delay Other expenses caused by the delay can be claimed.

Claiming back of the alimony paidImpossible, except when:

The court’s decision is canceled, because of the falsified information by the receiver of alimony

Defect of will in alimony agreement Falsification by the receiver of the court’s decision/alimony agreement, according to

which alimony was discharged from the payer’s salary.

End of alimony obligations

When the alimony agreement expires When provided for by the alimony agreement When the minor child reaches the age of 18 (receives full active capacity before) If the child-receiver of alimony was adopted If the receiver of alimony restores capacity or ceases to be in need If the spouse-receiver of alimony enters into new marriage In a case of death of one of the receiver or payer of alimony.

Alimony agreementAlimony agreement

• It is an agreement according to which one party is obliged to maintain another party by paying alimony.

• It is made between the party who was to pay alimony and the party who receives it.• If one of the parties is not active capable – the agreement can be made by its legal

representative.

Is an alimony agreement – a contract of civil law?Pro:

• Consequences of incorrect form – by civil code• Modifications, amendments, dissolution, voidance – by civil code

Contra:• Based on personal relationships and personal feeling of responsibility which are not

regulated by civil code

Voidance of the agreement• According to civil code• If the agreement significantly violates the interests of the party who receives alimony.

Responsibilities of judge• in a case of significant change of financial or family status of the parties the interested

party can make a correspondent action to the court• The judge considers any of the interests of the parties which deserves attention.

Amount of alimony• By the agreement of the parties• But not lower than the amount provided for by the law.

Methods of payment of alimony• Determined by the agreement• As a share in person’s wage• As a fixed sum of money – periodically• As a fixed sum of money – only once• With property• Any other methods or combination of these.

Alimony is a system according to which two people make a mistake and then only one continues paying for it.

AdoptionWho can be adopted?

Any minor child, if:• His/her the only one or both parents are dead• His/her parents refused from the child• The parents’ parental rights were ceased• The parents agreed for adoption• The parents are recognized as incapable• The parents are recognized as missing or as dead• The parents are unknown.

To be taken into consideration:• Age• Development• Consent

of the child (10 years)

Who can be an adopter1. Relatives of the child

of any citizenship

2. Citizens of Kazakhstan

3. Citizens of other countries – only if 1. and 2. are missing

Requirements for adopters• In adopters’ family there must be good conditions for the child’s development• Should:

– Have full active capacity (if married – of both spouses)– Be of appropriate health conditions– Be heterosexual – Have at least 16 years (not for stepmother/stepfather) and not more than 45 years

of difference with an unmarried adopter.• Should not:

– Have previous outstanding convictions [непогашеннае судимости]– Be a person without citizenship– Be an unmarried man– Be an alcoholic or drug-addicted– Adopter should not have his/her parental rights limited or ceased; should not be a

misbehaving tutor, guardian or adopter

• Unmarried adopter can be only one

Rights and obligations of future adopters

• To personally choose the child• To have personal contacts with the child for minimum 2 weeks (4 weeks for foreigners)• Written application to the OGT• Certificates on:

– Proper accommodation– Wage– Family status– Health– Criminal precedents.

Rights and obligations of adopter• To educate the child• To take care of his/her physical, moral and cultural development• To choose freely methods of education taking into consideration the child’s opinion and

the recommendations of the OGT• Foreign citizens have to report to OGT at least once a year.

Process of adoption• In court• With the consent of parents (if they have parental rights), tutors, guardians, patronage

parents, children; of another spouse• With the participation of GTB• The rights and obligations start from the date when the court decision on adoption was

made• Within three days from the date of the courts decision, the court has to inform the

registration body and GTB.

Property and non-property rights• The child looses all property and non-property rights and obligations towards biological

parents and acquire those towards adopters• Pension money and allowances that the child was receiving upon the parent’s death, keep

on being paid.

Name and date of birth of the child• The child keeps his/her initial name, patronymic name and surname• By the request of adopter the child can assume the adopter’s surname, patronymic name

which derives from adopter’s name and first name given by the adopter• For the change of name the child’s consent is required (from the age of 10), except

adoption secret case• Court’s decision• The date of birth can be changed for the child under 3 in case of adoption secret.

Voidance of adoption• Falsifying documents necessary for adoption• Non observance of adoption requirements

• By the court’s decision with participation of the GTB.

Ceasing of adoption• If adopters do not fulfill their parental obligations• If adopters abuse their parental rights• If adopters are recognized as alcoholic or drug addicted

• By the courts decision• Adoption cannot be ceased after the child reaches the age of 18, except mutual consent.

Inheritance LawKey words

• Succession• Inheritance• Opening of the inheritance • Heir• Succession under the will/ testamentary succession • Testator• Legal succession/ heir on intestacy• Orders of succession• Succession by right of representation• Acceptance of inheritance• Rejection of inheriatance• Escheat.

Succession• Is a transfer of the property of the person who is dead (testator) to another person/-s

(heir/-s).

Grounds for succession:• By will (testamentary succession).• By descent (legal succession) – if there is no will or if the will determines partially the

destiny of the inheritance.

History• Long, long time ago…• Roman Law• Tauke-khan laws• Civil Code of KazSSR• Modern Civil Code.

Inheritance• Property belonging to the testator• Rights and obligations, which are not terminated by his death• Except:

– rights of membership in legal entities (unless regulated differently);– the right to compensation of health damage;– rights and obligations arising from alimony obligations;– rights to pensions, benefits and other payments on the basis of labour legislation

of the Republic of Kazakhstan and laws of the Republic of Kazakhstan in the sphere of social security

– personal non-property rights, which are not associated with property, rights.

Succession of common property

• In a case of death of a participant in common property, the common property is being divided/ determined the share which belonged to this participant.

• Heirs receive the share in kind/ (if impossible) market price of this share• A share in common property can be inherited by a will.

Opening of inheritance• Inheritance is opened upon the death of a person or his/her recognition as dead.• Day of opening of inheritance is the day of death/ the day when the court’s decision

comes into effect• If persons who had the right to inherit one after another died on one day, they shall be

recognised as deceased simultaneously, and inheritance shall be opened after each of them and heirs of each of them shall be called for inheritance.

Place of opening of inheritance• The last place of residence of a testator• The place where the property is located.

Heir• People who are alive at the moment of opening of inheritance• Children who were conceived when testator was alive and who were born after the

testator’s death• Legal entities formed prior to the opening of inheritance and which existed at the moment

of opening of inheritance• The state.

Dismissal of improper heirs from succession• People who tried to murder/ murdered the testator/ one of the possible heirs. (except if

the will was written after the attempt) • People who impeded the exercise of the last will of a testator and through this have

increased the own share in inheritance• Parents whose parental rights are ceased and were not re-established by the moment of

opening inheritance

• A person who has no right to inherit or who is dismissed from inheritance has to return everything received

• The above is applied to all heirs: by will or be descent.

Inheritance LawLegal Succession

Legal succession• According to orders (priorities, queues) of succession• Subsequent order:

– if there is no heirs of previous order– if they were excluded from heirs– if they did not accept the heritage– if they have rejected the heritage

• Heirs can make an agreement between themselves, which would change the provisions of the law.

The first order of heirs• Children of the testator, including those born after his death• husband (wife)• parents of the testator• Grand children and their descendants inherit by right of representation.

The second order of heirs• Whole blood and the half blood brothers and sisters of the testator• Grandfather and grandmother both from his father's and from his mother's side.• Children of whole blood and half blood brothers and sisters (nieces and nephews) inherit

in accordance with the representation rights.

The third order of heirs• Blood aunts and uncles• Cousins inherit in accordance with the representation rights.

Other legal heirs• Relatives of the testator of the third, fourth and fifth degree of kinship who are not

recognised as heirs of higher priorities:– fourth order heirs – great-grandfathers and great-grandmothers;– fifth order heirs – the children of blood nieces and nephews (half-blood

grandchildren) and blood brothers and sisters of his grandfathers and grandmothers (half-blood grandfathers and grandmothers);

– sixth order heirs – children of half-blood grandchildren, children of his cousins (half-blood grandnieces and grandnephews) and children of his half-blood grandfathers and grandmothers (half-blood uncles and half-blood aunts).

• Stepbrothers and stepsisters, adopted sons, daughters, stepfather and stepmother of the testator inherit where there are no heirs of previous orders, if they lived together with the testator as one family not less than ten years.

Succession by the right of representation• The share of a heir who died prior to the opening of the succession is transferred to his

appropriate descendants and it is equally divided among them.

Disabled dependants of the testator• Disabled heirs inherit together with other heirs• If they are not relatives – inherits anyway• If there are no heirs in law, the disabled dependant inherits as the relative of the eighth

order.

The right to an obligatory share in the heritage• Minors or incapable children• Incapable spouse• Parents

inherit irrespective of the contents of a will, not less than half of the share which should be due to each of them when inheriting by law (the obligatory share).

The rights of a spouse

• The right of a spouse to inherit by virtue of a will or law shall not infringe any other property rights of the spouse which are associated with being married to an estate-leaver, including the right of ownership to the part of estate acquired during their marriage.

• Pursuant to a court decision a spouse may be removed from inheritance by law, provided it is proved that marriage with the estate-leaver actually terminated prior to the opening of inheritance and spouses lived separately for not less than 5 years prior to the opening of inheritance.

Acceptance of heritage• In order to acquire legacy the heir must accept it.• Acceptance by an heir of a part of legacy means the acceptance of the whole legacy that

is due to him.• Acceptance of legacy by one or several heirs shall not be recognised as acceptance of the

legacy by other heirs.

Timing• Heritage may be accepted within six months from the date of opening the succession.

If the period is expired• the court may restore that period if there is a significant reason and on the condition that

the heir who missed a date established for accepting succession, petitioned to the court within six months after the factors that caused missing of that date dropped off.

Rejection of heritage• An heir shall have the right to refuse an inheritance within six months from the day when

he learned or was to learn on his being called to inherit. If there are good reasons that period may be extended by the court, however not more than for two months.

Escheat• Where there are neither heirs by will nor by law, nor where none of heirs has the right to

inherit, or where all of them refused from inheritance, estate shall be recognised as ownerless – escheat.

Inheritance by willWill (testament)

• Is a declaration of intention of a person to distribute in a certain way his/her property in the case of his/her death.

Requirements• Full active capacity of the testator• All property/part of the property• To one person/several persons/legal entities/state• To people who are included/not included in orders of succession• Done personally (intimate transaction), no representative allowed• Can exclude one or more heirs by law without explanation of the reason• Currently owned assets/future assets• Distribution the property by shares is allowed• More than one testament can be written by the same person• Modifications and termination of will – at any time by the testator

• A testator cannot regulate in the will the ways the heirs should dispose the property in a case of their death.

Testator• Any person who is active capable

– Mentally sane– Age (?)

Conditional will• Testator has the right to determine (legal) conditions for the receipt of inheritance with

regard to heir’s behaviour.• Conditions, unfeasible for heirs due to health conditions or due to other objective reasons,

may be recognised as invalid by the action of the heir.

Sub-appointment of heirs• Testator can sub-appoint another heir for a case if the heir dies or rejects the heritage; or

if the heir does not comply with the conditions of the will.

Form of the will• Notary certification• Form equal to notary certification• Place, time• Must be signed personally by the testator.

Notary certification of the will• A notarised will must be written by a testator or written down by a notary from the words

of the testator in the presence of a witness. • A will written by a notary from the words of a testator must be fully read by the testator

in the presence of the notary and a witness before the will is signed.• When a notarised will is drawn up in the presence of a witness, the surname, name and

place of the witness' permanent residence must be indicated in a will. The same details must be included in a will with regard to a person who signed the will instead of a testator.

• At a testator's discretion, a will shall be notarised without a notary's perusal of its contents (a secret will).

Termination and amendments• Any time• Termination: submission to the notary the renunciation of the will/ writing a new will• Amendments: submission to the notary of the amendments/ writing a new will• The will that was written earlier is recognized as invalid if indicated so by the testator.

Secret of willmust be kept until the opening of the heritage.

Invalidity of will• Incorrect form• Incorrect process of compilation, signing and attesting.

Testamentary gift (legate)

• Is an obligation of a heir to make some actions for somebody (provide certain property for usage, make some service etc.).

• Only within the limits of price of heritage• Is described in the will.

DelegationAn obligation of a heir to make/not to make some actions.

Executor of the will• A person specially appointed by will or selected by heirs, who:

• Protects and manages the heritage;• Receives and distributes the heritage between the heirs• Ensures the fulfilment of legates and delegations• Liquidates the liabilities associated with the heritage

International Private Law Issues to regulate

• Marriage• Divorce• Property and non-property relations of spouses. Marital contract• Parents-children relations. Alimony obligations• Adoption• Guardianship and tutorship• Inheritance.

Foreigners arePersons who do not have the citizenship of the Republic of Kazakhstan and have proofs of citizenship of another country.(Law on legal status of foreign citizens in the Republic of Kazakhstan)

Marriage of/with foreigners in Kazakhstan• Form of marriage and procedures – according to family law of Kazakhstan• Conditions of entering into marriage – according to the legislation of the country of

origin of each of the spouses (only if meets the requirements of family law of Kazakhstan for entering into marriage)

• Marriages conducted abroad are recognized in Kazakhstan (unless…).

Marriage of/with Kazakhstan citizens abroad• Marriage between two citizens of Kazakhstan is registered in diplomatic representation

offices abroad• Conditions of entering into marriage – according to the legislation of the country of

origin of each of the spouses• Procedure of marriage of foreign citizen and citizen of Kazakhstan – according to the

foreign legislation.

Marriage• Form – lex loci celebrationis• Conditions – lex personalis (lex patriae) of future spouses• (public order)

Divorce• Lex fori• Lex domicilii, if such is missing – lex patriae of each spouse

Property and non-property rights• Are determined by the legislation of the country where the spouses live• Are determined by the legislation of the country where they had their last common

residence.

Property and non-property relations of spouses• Lex domicilii• Lex rei sitae

Marriage contract• Lex loci actus• Lex voluntatis

Alimony relations in family• Common lex domicilii, if there is no such• Lex domicilii of the child

Adoption• According to the laws of Kazakhstan• All the requirements of Kazakhstan legislation on adopters should be met• The competences of GTB abroad executes diplomatic representation of Kazakhstan in

that country.

International adoption• When kazakhstani minor is involved always laws of Kazakhstan are to be applied

Inheritance law• Lex domicilii of the testator• Lex patriae indicated in will• Capacity to make will – lex domicilii of the testator, where he was living at the moment

of making the will• For immovable property – lex rei sitae.