with paternity contestation is named in the German family right a negative declaratory action before the family court, the statement goal that the plaintiff is not father of a certain person in the Rechssinne. It is legally in the section „paternity “] of the BGB (§§ 1600 FF. BGB) regulated.
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for the contestation complaint is not sufficient it regularly, if the past father stated, it is the biological father. Rather verifiable circumstances must be spoken, which wake substantial doubts about the biological descent, even if from the point of view of the law (§ 1592 BGB) the paternity is not biologically defined.
This can be:
- Doubt about the conjugal tuning of a child (receipt-sneeze/birth outside of the marriage)
- concrete possibility of the descent of another man
- impossibility of the paternity because of missing sexual traffic with the nut/mother or
- Unfruchtbarkeit of the man in the receipt sneezing period.
Is not sufficient after the judgements of the Federal High Court of 12. January 2005 (XII ZR 60/03 and XII ZR 227/03) the result of an DNA analytic descending appraisal caught up without agreement of the child and/or the nut/mother, since a in such a way won appraisal for all legal proceedings remains unexploitable (secret DNA test).
legal evaluation of secret paternity tests
iurisdiction in Germany
2005 decided the Federal High Court that secret DNA Vaterschaftsanalysen neither when proof before court were permissible still as justified doubts for a paternity contestation procedure to serve can, because such tests hurt the personality right of the child (judgements of 12. January 2005 in the things XII ZR 60/03] and XII ZR 227/03]). So that the test is judicially usable, it requires the agreement either the child or with minority of its legal representative. This agreement can be replaced only by a judicial arrangement; such can take place only in the context of a paternity contestation process and only with justified suspicion. With its iurisdiction the Federal High Court confirmed valid practice, from that the district court Munich in a decision in the year 2003 (Gz.: 17HK 0 344/03) to deviate tried.
This problem places itself only with cases, in which the paternity is assumed by the law (because parents is married with one another) or by the father one recognized. Men, who want to have “only” certainty, are in here not subject to suit and impossible from the front.
Men, who contest their paternity before court, must make concrete grounds for suspicion for a contestation valid after the iurisdiction to obtain over a judicial arrangement of a paternity test and may thereby not to the result of a secret test appoint itself. This principle applies in the rest of civil law to all other private appraisals by the way likewise. As concrete grounds for suspicion e.g. are. conceivablly:
- as can be prove no sexual contact with the nut/mother at the generation time (designation of witnesses)
- a provable spatial separation at the generation time
- generation inability of the plaintiff at the generation time
the court can arrange a descending appraisal, whose result is usable in the further procedure process than proof. Outward characteristics are not possible usually as suspicious factors. If no remarkable similarities with the own child exist, this no reliable reference is on the fact that a relationship is impossible.
the paternity can in accordance with § 1600 BGB contest:
- the man, who is married at the time of the birth with the nut/mother of the child,
- the man, who recognized the paternity (see. Paternity acknowledgment,
- the nut/mother of the child and
- the child (if necessary. represented by its legal representative, see. § 640b ZPO)
exclusion of the contestation
- the child with consent of the man and the nut/mother by artificial fertilization by means of seed donation third one witnessed, then the contestation of the paternity is impossible by the man or the nut/mother (§ 1600 exp. 4 BGB, in former times § 1600 exp. 2 BGB).
- The paternity can be contested only within two years. The period begins with the time, in which the contestation-entitled experiences from the circumstances, those against the paternity speaks (§ 1600b BGB with further special arrangements to the period run)
omission of the family relation leads legal consequences
of the statement of the Nichtvaterschaft the statement that a child does not descend from that so far as a father assumed man,
- to the past father and its entire family to numerous legal consequences ( the right to refuse to give evidence in the criminal procedure remains in accordance with. § 52 exp. 1 No. 3 StPO however exists)
- omission of claims for alimony against the past father and further paternal relatives lineally
- omission of sociallegal requirements, which are due to the father (e.g. Family insurance in the health insurance company, orphan's annuity etc.)
- if necessary. Loss of the German nationality, if the latter were justified only by the paternity (and not also by other circumstances after the nationality right)
- with the past father becomes likewise requirements to be lost, e.g. Child benefit, child-referred portions of the content (public service), tax free allowances. The past father does not have a requirement on repayment of claims for alimony against the child in general opinion. It can reclaim however against late than father determined man performed maintenance payments (§ 1607 exp. 3 BGB).
responsible person for paternity statement and Vaterschaftsanfechtungsklagen is in principle the district court (family court) at the domicile of the child (§ 640a ZPO).
Web on the left of
- Right medicine university Mainz methods of the DNA analysis during descending investigation and forensischer trace customer
- guidelines of the Federal Medical Society for refunding of descending appraisal
- [http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=069b8d4a01f792315321eff8631e1f88&client=3&nr=31523&pos=11&anz=12&Blank=1.pdf judgement BGH to secret paternity tests of 12.1.2005
- [http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=069b8d4a01f792315321eff8631e1f88&client=3&nr=31521&pos=10&anz=12&Blank=1.pdf dito
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