Acknowledgment of paternity

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A father publicly communicates the birth of his son

The recognition of paternity is a voluntary declaration of will by a man to be considered the legal father of a child . Further requirements are necessary for their effectiveness.

Germany

The legal basis for the acknowledgment of paternity in Germany are §§ 1594 ff. BGB .

background

In certain constellations, a child (initially) has no legal father (to distinguish between legal, biological and social father, see article father ). This is always the case if there is no legal presumption of paternity , i.e. if at the time of birth the mother was single, her marriage was legally annulled or divorced , or if the husband died more than 300 days before the child was born. The same applies to a child whose origin is unclear ( foundling ), as well as if the previous paternity was excluded in the context of a judicial contestation of paternity .

In these cases, an acknowledgment of paternity by a man in conjunction with the mother's consent leads to the legal paternity of the acknowledging man. It is irrelevant whether the recognizing person is also the biological father of the child; With the process of paternity recognition, the legislature also wanted to create the possibility of legal paternity for men who actually play a father role (“social father”) without being a biological father (e.g. in blended families ). The concept of "untruthful" acknowledgment of paternity, which is occasionally used, is inadequate because the acknowledgment is not linked to the man's claim that he is in truth the biological father of the child.

Only if the presumed biological father does not voluntarily acknowledge paternity is a judicial determination of paternity necessary for legally effective paternity ( Section 1600d Paragraphs 1 and 4 BGB). The merely social but not biological father cannot be forced into the role of the legal father by judicial determination of paternity.

Acknowledgment of paternity

The recognition of paternity ( § 1594 BGB) is a voluntary declaration of will . The acknowledgment of paternity requires the consent of the mother and also of the child if the mother is not entitled to parental custody ( § 1595 BGB).

It can only take effect if it is recorded in a public document in front of a notary ( § 1597 BGB). Notarizing persons are, in particular, the authorized employees of the youth welfare office ( Section 59 of Book VIII of the Social Code ), but notarizing officials of the local courts , registrars , notaries and consular officers of German missions abroad can also notarize. Usually the recognition of paternity takes place at the youth welfare offices. The acknowledgment of paternity can also be certified by the court within a court of paternity proceedings ( Section 180 FamFG ).

If the recognizing person or the mother is incapable of doing business , legal guardians (with the approval of the guardianship court ) can recognize the paternity or declare the mother's consent ( § 1596 BGB). Acknowledgment of paternity is also possible for the unborn child (the nasciturus) ( Section 1594 (4) BGB). In exceptional cases, acknowledgment of paternity is even possible for the as yet unconceived child.

A consciously untruthful acknowledgment of paternity is still legally effective, but in such a case paternity can also be removed again through a subsequent contestation of paternity. However, the deadline of ( § 1600b BGB) must be observed . The period for contestation begins at the point in time at which the person entitled learns of the circumstances that speak against paternity. The period does not begin before the child is born and not before the recognition has taken effect. As a result, a challenge is no longer possible for more than two years after an untruthful acknowledgment of paternity has come into effect.

Suppression of existing paternity

If the child was born while the mother's marriage was not yet divorced or annulled, but the spouses have already filed for divorce ( Section 1567 BGB), the child is initially considered to be the husband's child ( Section 1593 BGB), with the husband's written consent but the acknowledgment of paternity of another man with the legal force of the divorce becomes legally effective. The legal exercise block ( § 1599 BGB) is broken if there is no dispute. In this way, a paternity contestation that would otherwise be necessary beforehand can be avoided.

In no other case can the paternity of another man be displaced by an acknowledgment of paternity ( Section 1594 (2) BGB).

Abusive acknowledgment of paternity

Section 1597a of the German Civil Code prohibits an improper recognition of paternity with reference to regulations relating to residence law and the acquisition of German citizenship of the child.

Legal consequences of the acknowledgment of paternity

The acknowledgment of paternity or the judicial determination of paternity has numerous legal consequences.

statistics

As the Federal Statistical Office announced in November 2001, the reform of the child law since July 1998 has relieved the youth welfare offices considerably. The number of paternity determinations made there decreased from just under 149,000 in 1997 to 105,100 in 2000. For the 179,500 newborns with unmarried parents in 2000, paternity was determined by a youth welfare office in 105,100 cases or 59%. In 4,300 of the proceedings at youth welfare offices (4%), paternity could not be officially established because, for example, the father is unknown or there are insurmountable difficulties preventing his determination, for example if he has gone abroad or is not named by the mother. In contrast, 93,100 or 89% of fathers voluntarily confessed to their paternity. In only 7,700 cases (7%) of the proceedings at youth welfare offices, paternity was determined by a court.

Austria

The Austrian regulations on the recognition of paternity largely correspond to the German ones. They result from the ABGB.

Switzerland

In Switzerland, the legal basis for acknowledging paternity is Art. 260 ff. ZGB .

See also

literature

  • Bernhard Knittel: Notarizations in child law. 6th edition. Cologne 2005, ISBN 3-89817-442-5 .

Web links

Individual evidence

  1. ↑ Palandt : Bürgerliches Gesetzbuch , § 1594 Rn. 5 for the case of the simultaneous acknowledgment of paternity and consent to heterologous insemination .
  2. ↑ OLG Cologne, judgment of October 25, 2001 , Az. 14 UF 106/01, full text = FamRZ  2002, 629.
  3. ^ BGH, decision of June 25, 2008 , Az.XII ZB 163/06, full text.
  4. ↑ Swiss Civil Code, Second Section, Third Section: Relationship / Recognition and Paternity Judgment
This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.