Abstract
Unlock the complexities of paternity disputes with expert legal insights. Discover how to navigate the process of contesting paternity, establishing filiation, and understanding the legal framework surrounding these sensitive issues. Learn about the conditions under which paternity can be challenged, the role of biological expertise, and the legal presumptions that govern paternal filiation. Get clarity on the rights of all parties involved and the steps to take in order to establish or contest paternity in accordance with the Civil Code and Civil Procedure Code.
Extract
[...] When filiation is not established by the presumption of paternity, it can be established by recognition, which can take place before or after birth, and must be received by a civil officer or a notary (Article 316 paragraphs 1 and 3 of the Civil Code). Recognition is the free approach by which a man affirms being the father of a child and undertakes to assume all the charges that the law attaches thereto. (Cass. civ. 1he April 2023, n°22-70.018). In this case, Francis recognized Boris before his birth in the presence of a notary. [...]
[...] The judge can, however, order it ex officio (Cass. civ. 1he November 2007, n°06-19.157). However, an identification measure of a person by genetic fingerprint or by blood test cannot be ordered by interim relief, but only in the context of a main instance related to filiation (Cass. civ. 1he June 2018, n°17-16.793). Thus, Jess cannot seize the referring judge to have a biological expertise carried out on Boris, she will have to request it from the judge then of the underlying instance at the bottom of the contestation of paternity of Francis. [...]
[...] The link of filiation Francis and Jess have been a couple for a few years. Jess left for Tokyo in 2021 and had an affair with Hans months later, she gave birth to Boris, whom she acknowledged. Francis, unaware of his wife's infidelity, acknowledged the child before birth in a notary's office. Jess has finally left Francis to live with Hans and wants to establish her paternity before any trial. The question is to determine, on the one hand, the link of filiation between Boris and Francis on the other hand, the means to establish the paternity of Boris and finally to know if it is possible to carry out a biological expertise before any trial In preliminary terms, the filiation link is the link uniting the child to its parents. [...]
[...] Therefore, in order to contest the paternity of Boris, Hans and Jess can act to contest it. To do this, it is up to them to prove that the legally established father is not the true father (article 332 of the Civil Code), and this by all means (article 310-3 paragraph 2 of the Civil Code). Therefore, Hans and Jess can contest the paternity of Francis in court, with the aim of establishing Hans' paternity with regard to Boris. On the action with the aim of establishing Hans' filiation with regard to Boris The action in search of paternity is reserved for the child (article 327 paragraph 2 of the Civil Code). [...]
[...] On the preliminary injunction in the future Article 145 of the Civil Procedure Code provides for the preliminary injunction in the future, according to which, if there is a legitimate reason to establish before any proceedings the proof of facts on which the solution to a dispute may depend, any interested party may seize the judge for interim relief in order to order all legally admissible investigative measures. in this case, Jess wants to have a biological expertise done on his son before any proceedings. Biological expertise is a matter of right in the matter of filiation (Cass. civ. 1he March 2000, n°98-12.806), including in the context of an action contesting recognition (Cass. civ. 1he June 2005, n°04-13.913), or of a paternity suit (Cass. ass. [...]
