There are certain people (apart from the wife’s husband) who may have an interest in proving that a particular person is not the real father of a particular child. These could be the biological/natural father of the child or the heirs of a person who is registered to be the father of a child. When impeaching filiation (i.e. requesting the court to change the name provided as the child’s father in the child’s birth certificate).
However different procedures apply and these depend on the marital status of the mother.
A child born 300 days after the dissolution of marriage
Any interested person may impeach the filiation of any child who is born 10 months after the dissolution or annulment of the marriage (Article 76, Civil Code). When a child is born 10 months after the dissolution of marriage (i.e. 10 months after annulment or divorce) the presumption at law that the child is the offspring of the mother does not subsist any longer.
A child born within marriage
Any person interested may impeach the paternity of a child who is born in wedlock if he proves that:
- between 10 and 6 months from the birth of the child, the husband of the wife was away from his wife or for some other accidental cause;
- between 10 and 6 months from the birth of the child, the wife committed adultery and produces evidence of any other fact (which may be DNA tests) that exclude the husband as the natural father.
(Article 77, Civil Code)
Procedure for paternity by the natural father
Any person who claims to be the natural father of a child that is born in wedlock may institute an action (through a sworn application) against the wife, her husband and the child so that he is declared by the Court to be the father of the child. The case will be successful if he proves that between 10 and 6 months before the birth of the child the wife conceived with him and brings forward evidence (such as DNA test) that exclude the husband as the natural father of the child (Article 77A, Civil Code).
Procedure for paternity by the wife
In case that a wife would like to declare that a given child is not that of her husband she should follow the same procedure as mentioned directly above this paragraph (Article 77B, Civil Code).
In an action for repudiation, the Court may invite all the parties involved (including the child) for a genetic test. However, the court may not force any party to submit to the genetic tests and it is up to the court to decide whether the child should submit to the tests or not if the child is still a minor. In the case that any of the parties involved refuse to submit to the tests the court may draw inferences as may be justified from refusing to submit to such test (Article 70(3)).