On 27th September 2011 the National Ordinance on judicial establishment of paternity has been accepted by the Parliament. The National Ordinance shall enter into force on May 1st 2013.
Core of the National Ordinance on "Judicial establishment paternity."
In normal cases a child gets a legal father because it is born within the marriage or because it is acknowledged. If that is not the matter, then the child is legally fatherless.
A fatherless child may not inherit from the biological father (natural father), not obtain his nationality, etc.
Who may file a request for judicial establishment of paternity?
In accordance with the new regulation the child may, if it is younger than 12 years, the mother or the Court of Guardianship may request the Court to judicially establish the paternity of the natural father.
However, the Court of Guardianship may not make a request if the mother opposes this. The natural father himself may, if the mother does not give him permission to acknowledge the child, request the Court to grant him alternative permission.
This thus has the same effect as a judicial establishment of the paternity. However, the difference exists that the Court will not grant the natural father any alternative permission if as a result of that the interest of the child would be harmed.
Condition for a judicial establishment of the paternity is that the child is fatherless.
If the child has a legal father who is not his biological father, it must first have the legal paternity affected via the Court.
Period for submission of request for establishment of paternity
For filing of a request for judicial establishment of the paternity no expiry date applies.
Also after the natural father has died judicial establishment of his paternity may be requested. Indeed in that case the Court may limit the claims according to the law of inheritance of the child if it is a matter of a specific hardship for the widow or the other children. This also applies if the man has died more than five years before the request a judicial establishment of the paternity according to the law of inheritance has no consequences.
For the rest the judicial establishment of the paternity indeed has the consequences of the paternity.
Assuming name of the child in case of establishment and in case of acknowledgment
What concerns the name of the child it applies that a judicial establishment has the same consequences as an acknowledgment. In case of acknowledgment as well as in case of a judicial establishment of the paternity the child who is younger than 16 years in principle keeps the name of the mother unless the parents jointly choose for the name of the father or for a combination of names (name of the mother followed by the name of the father or name of the father followed by the name of the mother).
If the child is 16 years or older it makes its own name choice.
Minister of Justice
R.E. Duncan
