Avoiding paternity

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The paternity contestation refers to legal proceedings with the aim of establishing that the previous legal father is not the biological father and the resultant consequence that the family relationships between the previous legal father and the child are retrospectively eliminated.

Germany

In family law , the paternity fraud is a design complaint : When applying for paternity fraud, the applicant seeks a declaration that the then accepted as a legal father husband was not the father of the child. Factually responsible for the procedure are family courts .

The court can order a parentage opinion, the result of which can be used as evidence in the further course of the proceedings .

Legal basis

The contestation of paternity is legally in the section "Descent" of the BGB ( §§ 1600 ff. ), In the newly inserted from April 1, 2008 § 1598a BGB and in the section "Procedure in descent matters " of the law on the procedure in family matters and in matters of voluntary jurisdiction (FamFG) ( §§ 169 ff. ).

From the point of view of the law ( § 1592 BGB), paternity is not defined biologically.

Persons entitled to contest

According to § 1600 BGB, paternity can be challenged:

  • the man who is married to the mother of the child at the time of birth,
  • the man who has recognized paternity (see paternity recognition ),
  • the man who affirms in lieu of oath that he was present with the mother of the child during the conception period (the prerequisite for a challenge here is that the person challenging is the biological father and there is no social-family relationship between the child and its legal father)
  • the mother of the child and
  • the child (in the case of minority by his / her legal representative , this can e.g. be a guardian or supplementary carer , cf. § 1600a para. 3 BGB)

Section 1600 BGB also provides in No. 5 that the competent authority is entitled to appeal in cases of acknowledgment of paternity ( Section 1592 No. 2 BGB), which is intended to prevent misuse through inappropriate acknowledgment of paternity. However, the Federal Constitutional Court declared this regulation unconstitutional and null and void in a decision of December 17, 2013 .

Grounds for avoidance

For the application to challenge, it is usually not sufficient for the legal father to claim that he is not the biological father. Rather, verifiable circumstances must be presented that raise considerable doubts about the biological origin .

These can be:

  • Doubts about a child's marital parentage ( conception or birth out of wedlock)
  • concrete possibility of descent from another man
  • Impossibility of paternity due to lack of sexual intercourse with the mother or
  • Male infertility in the conception period
  • a parentage report (DNA analysis) carried out with the consent of the child and mother , whereby there is usually a right to such consent, § 1598a BGB

Avoidance period

It should be noted that the challenge must be applied for at the competent family court within 2 years of knowledge of the circumstances justifying the challenge.

Exclusion of challenge

  • External features are generally not considered suspicious factors. If there are no noticeable similarities with another child who is considered to be their own, this is not a reliable indication of biological relationship .
  • A parentage report (DNA analysis) obtained without the consent of the child and / or the legal representative cannot be used for all legal proceedings (secret DNA test).
  • If the child was conceived with the consent of the man and the mother through artificial insemination by means of sperm donation by a third party, contestation of paternity by the man and the mother is excluded ( Section 1600 (4) BGB, formerly Section 1600 (2) BGB).
  • Paternity can only be challenged within two years. The period begins at the point in time at which the person entitled to challenge learns of the circumstances that speak against paternity ( Section 1600b BGB with further special regulations on the period), this also applies to deliberately untruthful acknowledgment of paternity .

History of the relevant case law in Germany

This section is a little messy, italicizes outdated law and needs to be revised. Details should be given on the talk page. Please help to improve it , and then remove this flag.

On 13 February 2007, the decision Constitutional Court that clandestine DNA paternity analysis neither proof nor as reasonable doubt are admissible in court, can serve method paternity Anfechtungs for one, because such tests violate the personal rights of the child. In order for the test to be usable in court, it requires the consent of either the child himself or, in the case of a minor, his legal representative . This consent can only be replaced by a court order; This can only take place in the context of a paternity avoidance procedure and only if there is justified suspicion. With its case law, the Federal Court of Justice confirmed the previous practice.

This problem only arises in cases where paternity is presumed by law (because the parents are married to one another) or has been recognized by the father. Men who “only” want to be certain are not entitled to sue and are excluded from the outset.

This constant case law was also confirmed by the Federal Constitutional Court, but with the stipulation that the legislature must also regulate an autonomous possibility of clarification for biological paternity (→ genitor ) without necessarily changing the previous regulation of legal paternity. For this purpose, the legislature was given a deadline of March 31, 2008, which was complied with with the “Law on the clarification of paternity regardless of the contestation procedure” of March 31, 2008. The law came into force on April 1, 2008. It essentially contains the newly inserted § 1598a BGB.

More history

  • In the case of procedural errors due to research evidence, see BGH judgment.
  • From 1938 to 1961, the public prosecutor had the right to challenge what was then called the challenge of marital status .
  • In any case, if the man is challenged, it is constitutional not to conduct a child welfare test.

Legal consequences of establishing non-paternity

The finding that a child does not descend from the man who was previously assumed to be the father leads to numerous legal consequences. These are the respective reversals of the legal consequences of paternity.

Jurisdiction

In principle, the district court ( family court ) at the child's habitual residence ( Section 170 FamFG) is responsible for paternity determination and paternity contestation applications.

costs

The costs of a successful paternity contestation are to be set aside between the parties involved, whereby the minor child concerned is not involved in the court costs, Section 183 FamFG. This means that each participant bears their own costs (including a possibly appointed lawyer) and the court or procedural costs (including expert costs) are divided according to head shares among the adults involved.However, court and expert costs cannot be charged to the minor child imposed, even if it challenges paternity itself ( Section 81 (3 ) FamFG ). The legal value of the procedure is set at € 2,000 ( Section 47 FamGKG ). The typical costs for the lawyers of each party and the court amount to a total of around € 1,000 (with € 2,000 procedure value: 2 times 2.5 legal fees plus expenses plus VAT plus 2.0 court fees. In August 2007, a litigation carried out cost Parentage reports (DNA analysis) add around € 1,000.)

See also

literature

  • Dieter Henrich : On the draft of a law to supplement the right to contest paternity. FamRZ 2006, 977.
  • Sonja Orel: Secret paternity tests. Prospects for a reform of paternity examination options. Herbert Utz Verlag, Munich 2007, ISBN 3-8316-0698-6 .

Web links

Individual evidence

  1. ↑ Valid since June 1, 2008 by the law supplementing the right to contest paternity of March 13, 2008 ( Federal Law Gazette I p. 313 )
  2. ↑ Remus, Juana, Official Paternity Contests: The Rights and Dependencies of the Child in View
  3. ↑ BVerfG, 1 BvL 6/10 of December 17, 2013
  4. ↑ BGH, judgments of January 12, 2005 (PDF; 34 kB), Az. XII ZR 60/03, full text and Az. XII ZR 227/03 (PDF; 42 kB).
  5. ↑ OLG Cologne, judgment on October 25, 2001  ( page no longer available , search in web archives ), Az. 14 UF 106/01, full text, (accessed on January 27, 2008).@1@ 2Template: Toter Link / www.ihranwalt24.de
  6. ↑ BVerfG, judgment of February 13, 2007 , Az. 1 BvR 421/05, full text.
  7. ^ BGH, judgments of January 12, 2005 , Az.XII ZR 60/03 and Az. XII ZR 227/03, full text.
  8. ↑ BVerfG, judgment of February 13, 2007 , Az. 1 BvR 421/05, full text.
  9. ↑ Text and amendments to the law to clarify paternity regardless of the appeal procedure
  10. ↑ BGH, judgment of March 1, 2006 (PDF; 93 kB), Az. XII ZR 210/04, full text.
  11. ↑ Recognition of paternity ( Memento of January 16, 2008 in the Internet Archive ) (accessed on January 27, 2008).
  12. ^ Higher Regional Court Brandenburg, judgment of May 28, 2009 , Az. 9 UF 151/08, full text.
  13. ↑ a b OLG Stuttgart, judgment of July 11, 2008 , Az. 8 WF 102/08, full text.