In legal science, kinship refers to the family bond or relationship that exists between two natural persons. There are two types of kinship:
a. Kinship by blood between two persons exists:
a1. When one person descends from the other (e.g. child-parents). For this bond to arise in the case of the mother, the mere birth of the person is obviously sufficient. By contrast, in order to establish the relationship with the father, he must marry the mother of the child or (if they do not marry) proceed with recognition of paternity. This kinship is called kinship by blood in the direct line.
a2. When they descend from the same ancestor (e.g. siblings). This kinship is called kinship by blood in the collateral line.
b. Kinship by affinity exists when a marriage is contracted between two persons. From that moment, one spouse is a relative by affinity to the relatives by blood of the other.
It is worth noting that spouses are not relatives between themselves, while the degree of kinship is calculated on the basis of the number of births that have intervened between the two persons. The mother, for example, is a first-degree relative by blood in the direct line with her child, while siblings are second-degree relatives by blood in the collateral line between them. The same applies for determining the degree of kinship by affinity.
The existence of kinship and its degree may play a very important role in many legal matters, since on its basis the law establishes impediments (e.g. to marriage) and grants rights (e.g. inheritance rights).
See also the article Inheritance Law Lawyer
FREQUENTLY ASKED QUESTIONS ON KINSHIP
1. How is the degree of kinship between two persons calculated?
The degree of kinship results from the number of births that intervene between the two persons. In the direct line (parents-children-grandchildren), the mother is a first-degree relative to the child, and the grandfather is a second-degree relative to the grandchild. In the collateral line, we move up to the common ancestor and down to the other person: siblings are second-degree relatives, an uncle and nephew are third-degree, and cousins are fourth-degree. The same calculation applies to kinship by affinity. Correct determination is important for inheritance rights, marriage impediments and tax brackets.
2. How is the relationship of kinship with the father legally established?
Kinship with the mother arises automatically upon birth. With the father, by contrast, what is required is either marriage to the mother at the time of conception or birth (presumption of paternity under Article 1465 of the Civil Code (AK)), or voluntary recognition by notarial deed or declaration before the civil registry, or judicial recognition through a lawsuit filed before the Single-Member Court of First Instance. Where there is no marriage and the father refuses to recognise the child, the mother or the child themselves may seek judicial recognition of paternity on the basis of evidence, including DNA testing.
3. What is the significance of kinship for inheritance rights?
Kinship and its degree determine intestate succession. The law classifies relatives into six classes: the first comprises descendants (children, grandchildren), the second the parents and siblings, and so on. The surviving spouse is called to inherit alongside each class with a share that varies accordingly. In addition, children, parents and the spouse have a guaranteed forced heirship share equal to half of their intestate share, of which the testator cannot deprive them by will except in restrictively listed cases of disinheritance.
4. What marriage impediments arise from kinship?
Marriage is prohibited between relatives by blood in the direct line without limit, and in the collateral line up to and including the fourth degree (siblings, uncle-niece, cousins). It is also prohibited between relatives by affinity in the direct line without limit, and in the collateral line up to the third degree. A marriage contracted in violation of these impediments is void and may be challenged by lawsuit before the Single-Member Court of First Instance. The same impediments apply by analogy to the civil partnership agreement. Corresponding restrictions also exist in adoption.
5. Does kinship by affinity cease upon divorce or death?
No. Kinship by affinity is not dissolved by the dissolution of the marriage, whether by divorce or by the death of one of the spouses. The former son-in-law remains a relative by affinity to the parents and siblings of the former wife. This has practical consequences, particularly with regard to marriage impediments which continue to apply even after the dissolution of the first marriage. It must also be noted that spouses themselves, while the marriage subsists, are not legally regarded as relatives of one another, although they have autonomous rights and obligations arising from the marital relationship.
6. When is a lawyer needed in matters of kinship?
A lawyer is essential in disputes over or recognition of paternity, in the contestation of paternity of a child born in marriage, in adoption proceedings, in inheritance disputes where the status of the heir or their share is at issue, in lawsuits concerning the forced heirship share and disinheritance, and in the annulment of marriage on grounds of kinship. The lawyer gathers the civil registry certificates, draws up the family tree, correctly calculates the degrees of kinship, files the appropriate lawsuits before the Single-Member Court of First Instance, and represents the client before the tax authorities on matters of transfer or inheritance tax brackets.