Law to clarify paternity regardless of the contestation procedure
| Basic data | |
|---|---|
| Title: | Law to clarify paternity regardless of the contestation procedure |
| Type: | Federal law |
| Scope: | Federal Republic of Germany |
| Legal matter: | Family law |
| Issued on: | March 26, 2008 ( BGBl. I p. 441 ) |
| Entry into force on: | April 1, 2008 |
| GESTA : | C123 |
| Please note the note on the applicable legal version. | |
The German law to clarify paternity independently of the contestation procedure became necessary through the judgment of the Federal Constitutional Court of February 13, 2007. It requires a procedure for fathers to determine the biological paternity independent of the legal paternity.
Origin of the law
Both the federal government and the Bundesrat each submitted their own draft law. The Bundestag then passed the government's draft on February 21, 2008, incorporating the amendments proposed by the Bundestag Legal Committee. The law, which was issued on March 26, was then published in the Federal Law Gazette on March 31, 2008 . It came into force on April 1, 2008.
content
The law changes several other laws. The civil code is changed by inserting § 1598a BGB so that the father, mother and child have the right to have the parentage of the child determined. For this purpose, a court can order the taking of samples against the will of the respondents. In addition, the law changes the civil procedure code , the cost system , the law of voluntary jurisdiction and the introductory law to the civil code . The latter contains a transitional provision that contesting paternity is no longer possible even after non-parentage has been established if contestation of paternity has already been rejected due to the statute of limitations.
criticism
Tobias Helms and Rainer Frank criticize the fact that in the judgment and in the law it is not mentioned that “Germany at the time of National Socialism was already a pioneer of a 'lawsuit to establish blood-based descent'.” With the law, German case law is “probably the only one in the world “has its own procedure available to clarify paternity. In the opinion of Helms and Frank, fathers who only know the parentage but do not want to break the family relationship have so far hardly occurred.
“Fathers who only pursue the goal of clarifying questions of parentage without drawing any legal consequences from them if the DNA test should prove that they are not paternity are - to put it mildly - a rarity. After all, such fathers would have had the option under the previous law to withdraw their action for annulment after obtaining the parentage report. "
The process makes it possible to “terminate lived social ties at any time in the name of biological truth” for an unlimited period of time. It is important "to point out to those who compel the clarification of the genetic descent that they have to be satisfied with the satisfaction of their right to know the genetic ancestry and that they cannot derive any legal advantages from this".
Dieter Schwab complains about the law that a legal father can initiate a clarification of the parentage at any time and without concrete clues. Schwab criticizes the justification of the law, according to which the law "should protect the family in their social existence and avoid the involvement of the courts as far as possible." It is absurd, with the "invention of unlimited claims among family members, the social existence of the family protect". After the paternity test, a man has two years to decide whether to contest legal paternity. Schwab writes: “Two years are a third of childhood and the ninth part of all youth. May the psychologists talk about ties, interest in stable living conditions, systemic thinking as they please - this is about rights that obviously cannot be expected to make a quick decision. "
literature
- Sabina Schutter: Secret paternity tests: the public debate about the child's genes. In: "Correct" children: Of secret and inconsequential paternity tests. VS Verlag für Sozialwissenschaften, Wiesbaden 2011, ISBN 978-3-531-92867-8 , pp. 91–99. doi: 10.1007 / 978-3-531-92867-8_5
- Jochen Bölsche, Jürgen Dahlkamp, Markus Deggerich, Dietmar Hipp, Irina Repke, Michaela Schießl, Bruno Schrep: to be or not to be . In: Der Spiegel . No. 4 , 2005, p. 40 ( online ).
Individual evidence
- ↑ bundesverfassungsgericht.de
- ↑ a b c Documents on the legislative procedure at the DIP
- ↑ a b Tobias Helms and Rainer Frank : Critical remarks on the government draft of a law to clarify paternity regardless of the contestation procedure. In: Journal for the entire family law . No. 16, 2007, pp. 1277-1360.
- ↑ Dieter Schwab : Descent clarification - made easy. Or: New dialogue in the family . In: Journal for the entire family law . No. 1, 2008, pp. 23-27.
