Divorce and the determination of paternity issues

The issue of establishing paternity is very important after the birth of a child from the legal point of view because its absence may cause many formal problems. Polish regulations directly provide for situations when the mother’s husband is considered the father of the child. But what if the child was born after the divorce was pronounced? Below we will try to present the most important issues connected with this issue.

Article 62 of the Family and Guardianship Code provides expressly that if a child is born during the marriage or within three hundred days after its cessation or annulment, it is presumed to come from the mother’s husband. An exception to the application of this presumption is when the child was born before the expiration of three hundred days from the cessation or annulment of the marriage, but after the mother entered into a second marriage. In such a situation, the child is presumed to come from the second husband, except when the child was born following a medical procedure consented to by the first husband. Very importantly, if the child was born as a result of a medically assisted procreation procedure, a denial of paternity is inadmissible.

It is important to note that it is quite common for a child to be born after a divorce has been decreed by the court. In accordance with the established principle of the marriage is dissolved when the court decision on dissolution of marriage by divorce becomes final and not, as it may seem, the moment of pronouncement of the judgment itself. In such a situation, if the child was born after the pronouncement of the divorce judgment, but before it became final and if no more than 300 days elapsed from the day on which the divorce judgment became final to the day on which the child was born, the principle of presumption of paternity, contained in Article 62 § 1 of the Family and Guardianship Code, shall be accepted. This means that the mother’s ex-husband is presumed to be the child’s father.

This presumption may sometimes cause many problems and doubts, especially when the mother knows that the child’s father is not her ex-husband, but his current partner. In such a situation a woman should bring an action for the denial of paternity. The primary duty of the mother in such a situation is to prove that her ex-husband is not the child’s father. So far, the best and most reliable way to prove this fact is to conduct DNA tests. Of course there may be situations of the child’s mother’s ex-husband does not agree to DNA testing. Then the mother may conduct tests that will confirm the paternity of her current partner, which will mean that there is no relationship between the ex-husband and the child. As indicated the Supreme Court in its ruling of 13 December 2000 (III CKN 1422/00): “The aim of the proceedings for determination of paternity is not to establish the paternity of the biological husband of the mother, but to rebut the statutory presumption that the child comes from him.

An action for the denial of paternity is brought by the mother against the husband (or ex-husband) and the child, or if the husband (or ex-husband) is deceased, against the child itself. Polish law gives the mother the right to bring an action for paternity denial against her husband (or ex-husband) within one year from the day on which she learns that the child does not come from him, but no later than the day the child attains majority.