"You never feel more like a man than when you become a father to a newborn." Matthew McConaughey
Family law is one of the core areas of practice at our law firm. Clients frequently come to us with a wide range of matters in this field. We provide legal assistance with drafting and formalizing prenuptial agreements, handling divorce proceedings and resolving disputes between spouses, concluding maintenance (alimony) agreements, and other matters within the legal relationship between spouses or former spouses. It is not uncommon for clients to ask us to help establish paternity for minor children. This question is, of course, an important one, given that it gives rise to certain obligations — including the obligation to pay child support.
So what, from a legal standpoint, does paternity actually mean in Germany?
From the law's point of view, the rules are set out quite clearly: the father of a child is the man who — is married to the child's mother at the time of the child's birth; or — has acknowledged paternity himself; or — whose paternity has been established by a court under § 1592 of the German Civil Code (German: Bürgerliches Gesetzbuch, BGB).
Important at Divorce
Under German law, the child's father is the man who is married to the mother at the time of birth, who has acknowledged paternity himself, or whose paternity has been established by a court under § 1592 of the German Civil Code (German: Bürgerliches Gesetzbuch, BGB). The lawful husband may challenge this only within the child's first two years of life.
Taken at face value, the law provides that the legal husband of a woman who gives birth during the marriage is automatically recognized as the child's father. The man recognized as the father from a legal standpoint may, however, challenge his paternity only within the first two years of the child's life. Once that period has elapsed, he no longer has that option — regardless of whether he is the biological father or not. This rule exists in Germany to protect the rights and legitimate interests of minors.
Once paternity is acknowledged or established with respect to his child, a man acquires two main categories of rights, from which corresponding obligations flow: Sorgerecht — the right to decide vitally important matters (choice of name, place of residence, school, principles of upbringing, and so on); Umgangsrecht — the right of parents and close relatives to maintain contact with the child.
As a general rule, both mother and father have equal duties and rights with respect to their children. All questions relating to the children's upbringing and education must be decided by the spouses by mutual agreement, taking the children's views into account and acting in their best interests.
Every family is its own story, with its own plot and its own ending — happy or not so happy. At times, the twists and turns of family life unfold in such a way that resolving matters once and for all requires the help of a qualified lawyer. Our firm encountered just such a case in practice.
A young woman, a Russian citizen permanently residing in Germany, came in for a consultation at our firm — let's call her Olga. Olga had moved to Germany from a small town in the Russian provinces under a family-reunification program. She met her future husband on a dating site, and the relationship developed quickly — after just a month of intense correspondence, her future husband — let's call him Andreas — invited her to visit, and then came himself to meet her parents. Impressed by the young woman's domestic skills, her cooking, her easygoing manner, and her wish for family life, the young man didn't take long to propose. The couple soon married in Russia and celebrated the wedding with family. As had been agreed in advance, Andreas then took his young wife home with him to Germany.
The first few years in Germany went fairly well for the young woman — she and her husband rented a fairly spacious apartment, built their family nest, and bought a car for the household. At the same time, Olga regularly attended German-language courses, found part-time work at a cosmetics and perfume shop, and made new friends. Trouble in her relationship with Andreas began around three years into their life together. Her husband's career started taking off, and he gradually spent less and less time at home. There was always some reason — an urgent report that had to be finished and sent to his boss before a meeting, work to cover for an absent colleague, an urgent business trip. Naturally, none of this suited Olga, who found herself spending long evenings alone in an empty apartment, waiting for her husband. Several attempts to talk things through and sort out their relationship failed to produce the desired result, and the young woman, without dwelling on it too long, decided she wasn't going to waste her own time either. She began devoting more time to herself, enrolled in a professional training course, and started attending various social events on her own. At one such gathering, she met a young man named Matthias, and the two of them began a passionate affair. There's no telling how long this whole story might have gone on, but life had other plans for the love triangle that had formed. The young woman became pregnant by her new lover, which pushed the "legal side" of the matter to the forefront. Olga came to our law firm for a consultation, asking us to help resolve things so that Matthias would become not only the child's biological father, but its official father as well.
Our firm's lawyer, who specializes in family-law matters, explained to the client that if the child were born before the divorce from her lawful husband was finalized, Andreas would be recorded as the child's father from a legal standpoint. That was not at all what the young woman had planned or intended — she wanted to obtain a divorce from her husband as quickly as possible, so that Matthias would be the child's father not only biologically, but in the eyes of the law as well. We represented the young woman's interests throughout her divorce proceedings, from start to successful conclusion. The divorce was conducted in accordance with the requirements of German law, meaning that, once the petition was filed, the spouses were required to observe the so-called year of separation (German: Trennungsjahr) — a statutory period given to families experiencing a breakdown of the marriage to reach a final decision about separating. This rule is governed by §§ 1564–1568 of the German Civil Code (Bürgerliches Gesetzbuch — BGB). In certain cases, divorce is possible even before that year has elapsed, where there are weighty grounds not to wait out the statutory period — proven facts of domestic abuse, threats to the life or health of a spouse or the children, a severe addiction, or violations of criminal law. The waiting period may also be shortened where the wife is pregnant and the husband has good reason to believe he is not the biological father of the forthcoming child. In such a case, however, the request to expedite the divorce, submitted in the form of a formal written application, must come precisely from the "aggrieved" party — that is, from the husband.
The lawyer representing Olga's interests held negotiations with opposing counsel and proposed making use of this option to speed up the proceedings, all the more so since it was in Andreas's interest as well. That was the plan agreed upon — but life had other ideas. While the documents were still being gathered and prepared, and the case was being made ready for the family court, Olga's child decided not to wait, arriving somewhat ahead of the expected date. As a result, since the divorce had not yet taken place, Andreas was recognized as the child's official father. Our firm's lawyer continued handling the case. By agreement of the parties, it was decided that opposing counsel, representing Andreas, would file an application to challenge paternity, while our client's side would submit the biological father's application acknowledging the child as his own. The court ordered a genetic test to confirm Matthias's paternity. Based on the results of that test, the court ruled that Matthias was the child's father and that he would henceforth be recorded as such in all official documents, bringing with it the corresponding rights and obligations. In the end, the desired outcome was achieved — the divorce went through, and the newborn child gained a complete family with two loving parents.
The lawyers at our firm wish everyone nothing but happiness and well-being in family life. Sadly, life after marriage is not always smooth sailing. Couples should bear in mind that crises in family life are inevitable — they spare not even the happiest of couples. If the spouses understand that the boat of their family happiness rests only in their own hands, they can weather any storm and will find the strength to hold their family together for a lifetime. But if the broken pieces of that happiness cannot be put back together, and divorce turns out to be the right decision in your particular case, we invite you to our law firm, where we are always ready to help you find the best way forward and support you through your circumstances across every area of German law.
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