Court of Cassation Upholds Possession of State in Paternity Presumption

Extract

[...] It was stated by the adagethe father is he whom the marriage demonstrates, and was integrated into Article 312 of the Civil Code of 1804. This presumption stems from the very nature of marriage, which gives a high probability that the husband is the father of his wife's children. This presumption is based on the husband's willingness to accept his wife's children in advance. Initially, this presumption founded legitimate filiation, benefiting from considerable force to protect the child, social order, and family peace. [...]

[...] However, legitimate filiation remained protected when the title was corroborated by a concordant possession of state. This system was deeply reformed by the ordinance of 4 July 2005. Also, in its decision, the Court of Cassation, rendered under the guise of previous provisions prior to this reform, proceeds to an analysis despite the title of the possession of state suggesting that this one supplants the biological filiation. The possession of state supplanting a biological filiation link The Court of Cassation indicates « that it had exactly deduced that the attitude of the latter could not vitiate the possession of state of the legitimate children of Lauriane and Dorine which, being in accordance with the birth certificates, made the action irreceivable. [...]

[...] In fact, the case law of the Court of Cassation had firmly established since 1992 that neither the father nor the mother could interrupt or break the possession of state by fraudulent maneuvers to escape the action of contesting filiation (n° 90-20.252). This case law remains relevant for the application of articles 333 and 334 of the Civil Code. Similarly, the methods of assessing the possession of state before the ordinance of July are still relevant today to determine the holders and the time limit for an action contesting paternity (Court of Cassation, July n° 07-16.253 and March n° 07-11.573). [...]

[...] Mr. X was infertile and during their marriage, the wife maintained a relationship with Mr. Z. In 2000, the wife left the conjugal home, requested a divorce to live with her lover and refused to exercise a right of visitation with her husband. The lover then proceeded to a paternity recognition by notarial act and Mrs. X and Mr. Z therefore introduced an action to contest legitimate filiation as well as a request for biological expertise. [...]

[...] The husband, on the other hand, argues that due to the effective possession of state and his legal title as father, he benefits from the presumption of filiation. By judgment of 1he In April 2003, the Court of Appeal of Riom rejected the requests of the wife and the lover. They therefore appealed in cassation. Two grounds were raised before the Court of Cassation, the first of which criticized the Court of Appeal for having excluded from the debate a note in deliberation of 26 March 2003. [...]