"You never know how short a month is until you start paying child support." — John Barrymore
Clients often come to our law firm asking for help resolving questions relating to the legal determination of paternity for a minor child. Settling this question conclusively is most often necessary for the enforcement of parental obligations, including the payment of child maintenance. So what does paternity mean, legally speaking, in Germany?
The law defines this fairly precisely: the father of a child is the man who — was married to the child's mother at the time of the child's birth; — voluntarily acknowledged paternity; or — was found by a court to be the father under §1592 of the German Civil Code (German: Bürgerliches Gesetzbuch, BGB).
Important at Divorce
The law defines this fairly precisely: the father of a child is the man who was married to the child's mother at the time of the child's birth, who voluntarily acknowledged paternity, or whose paternity was established by a court under §1592 BGB.
Reading the letter of the law, the official husband of a woman whose child is born during the marriage is automatically recognized as the child's father. A man recognized as the father in this way, however, may only contest his paternity during the first two years of the child's life. Once that period has passed, he no longer has that option — regardless of whether he is the child's biological father. This rule exists in Germany to protect the rights and legitimate interests of minors.
Not every country's law governing the creation of parental rights is identical, however. Under English family law, for example, if the child's father and mother are married to one another at the time of the birth, they are both automatically granted parental responsibility. Regardless of whether the child's mother is married, she automatically acquires parental responsibility as the child's mother. If the child's father was not married to the mother at the time of the birth, he must prove to a court, in order to acquire parental responsibility (rights), that he has a close bond with the child, that he takes an active part in the child's life, and that his application is motivated solely by the child's welfare and by no other factor. The fact that the father may not have seen the child for a long time, or that the mother objects to his seeing the child, is not decisive for a court's decision to grant a parental-responsibility order in the father's favor. Nor does the fact that some other person has already acquired parental rights deprive other individuals of the right to seek recognition of the same rights for themselves. In the United Kingdom, then, unlike in Germany, a man who was never married to the mother — and who only enters the child's life after the two-year period mentioned above has passed — can still be recognized as the child's father.
In other words, English law relies more heavily on the actual circumstances necessary for parental rights and obligations to arise than on the parents' legal status at the time of the child's birth. In certain cases, which country's law applies can prove decisive for the enforcement of child maintenance or other parental obligations. We would like to share with our readers one interesting case from our practice.
A middle-aged woman came to our law firm — let's call her Olga. At the time she contacted us, she was raising her 10-year-old son Anton (name changed) on her own. Olga needed the help of a lawyer specializing in family law to compel her son's biological father to pay child maintenance. Our client, born in Ukraine, had spent much of her life in England. Having first moved to England to study at university, she met a promising young man there — let's call him Robert. Their courtship was over almost before it began. Soon the couple moved in together, and half a year after that they held a lavish wedding, inviting numerous relatives and friends from both England and Ukraine. Yet just a year into married life, the two began to feel that "something had gone wrong." Perhaps differences in mentality, along with both spouses' immaturity and lack of readiness for married life, played a damaging role. Their relationship was increasingly marked by fierce arguments, interspersed with periods of "cold war." The couple had already begun discussing the possibility of ending the relationship and parting as good friends in the foreseeable future.
Against this unhappy backdrop, Olga began a new relationship. At a close friend's birthday party, she met a young man from Russia who had come to England on a five-year work contract. Roman (name changed) seemed, at first glance, a perfect match for her — he knew how to court a woman properly and shared Olga's love of lively parties and social gatherings. What's more, the two spoke the same language and understood each other instinctively — something that had never been true with her husband, Robert. The relationship developed so quickly that, by the time the official divorce proceedings began, our client was six months pregnant. It was obvious to her that the father of her unborn child was her new love, Roman. Nevertheless, the boy was born before the divorce had been formally finalized, so Robert was officially registered as the father of the newborn Anton. After the divorce, Olga and her son moved into Roman's apartment. Roman, who at the time wanted to build a proper family with the woman he loved, decided to do "the gentlemanly thing" and formally declared that he recognized Anton as his own child and was prepared to take on parental responsibility for the boy. Unfortunately, this relationship did not last long either. Just a year after they began living together, the couple decided to separate. Olga no longer wanted to stay in England, where her personal life simply refused to come together. She packed up and moved with the boy to Germany, where she had several relatives and friends. Roman gradually wrote and called less and less often, and after a while disappeared "off the radar" entirely, leaving Olga to handle everything to do with raising her son on her own. Time passed, the boy grew by the day, his needs cost more and more to meet, and the woman came to us to secure financial support from her child's biological father.
Our firm's lawyer took on the case and sent Roman a demand for child maintenance. Roman, unfortunately, refused to engage and even threatened to call the police if contacted again. Once it became clear that going to court was the only remaining option, the lawyer, acting on our client's instructions, prepared the corresponding petition. In this case, the petition was filed with the competent German court at the child's place of residence, but the substantive law applied was English law, since both the minor boy and Roman had been living in England at the time paternity was acknowledged. During the proceedings, the judge ordered that an independent expert opinion be obtained on how a father's parental rights are recognized under English law. Through the efforts of our firm's lawyer handling the case, two expert opinions were obtained confirming that, under English law, paternity can be recognized in a person who was never married to the mother, even after the child's birth. Evidence was also submitted confirming that Roman was indeed the father of Olga's son. Our firm's lawyer is now actively preparing for the next hearing, at which further arguments will be presented to reinforce our legal position. We have good reason to believe our chances of success in this case are quite high. If we prevail, Roman's obligation to pay child maintenance for his minor son will have to be enforced. We will, of course, continue representing our client's interests until the proceedings are fully concluded, including through any enforcement action that becomes necessary.
In closing, we would note that many parents regard having children as a necessary life experience, while many others would say that being a parent brings both joys and difficulties. The decision about whether and when to have a child is one of the most important a person will ever make. There is no right or wrong answer, since no one is obliged to have children simply because they have reached a certain age. It is always advisable to first think through one's motives and wishes, and to assess one's lifestyle and relationship with a partner, in order to make the right decision for oneself and one's family. On the other hand, as we all know, life is never a walk in the park. If difficulties or unforeseen situations have arisen in your family life and you need the help of an experienced lawyer with many years of successful practice, we warmly invite you to get in touch with our law firm.
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