Lapse of the father’s right to bring an action challenging paternity
Right to identity
RULING Nº 589/07
28 of November of 2007
Even if a biological truth principle can be said to exist in the ambit of the law of descent, this principle has no constitutional status and cannot be used as the sole grounds for a finding of unconstitutionality vis-à-vis the rule establishing a deadline for commencing an action to disprove paternity.
Setting a deadline for a putative father to attempt to disprove his paternity does not necessarily constitute an intolerable restriction on the right to development of personality defined as the right to live his life freely, provided the fact of forfeiting the right to commence such an action is accompanied by an appropriate weighting of opposing values.
In this judgment the Constitutional Court ruled on the alleged unconstitutionality of the Civil Code article establishing a deadline on the right of a child's mother's husband to commence an action to disprove his paternity during his marriage to the mother, where it has been scientifically proved that the litigant is not in fact the biological father of the aforementioned child.
The decision in question was based on the Constitutional Court's judgment erga omnes to the effect that the provisions of Article 1817.1 of the Civil Code on the deadline for children wishing to initiate an action to establish paternity are unconstitutional, which subsequently became established case-law. These provisions were declared unconstitutional because they set a two-year time-limit on initiating proceedings starting from the date of the child's coming of age. The question in the instant case is whether the considerations underlying the Constitutional Court's declaration of unconstitutionality of the provisions of Article 1817.1 of the Civil Code relating to actions to establish paternity can be transposed wholesale to the appraisal of the deadline set for commencing an action to disprove paternity.
It emerges from the case-law of the Constitutional Court that the unconstitutionality of the time-limit for children to bring an action to establish paternity involves the principle of proportionality, that is to say that this time-limit/deadline was declared unconstitutional because it was deemed to be not a limitation but rather an intolerable restriction on the fundamental rights to personal identity and to development of personality, as well as on the fundamental rights in terms of family life.
The question in the instant case is whether the provision which is the subject of the appeal violates the mother's husband's fundamental right to personal identity, thus potentially justifying the conclusion that by virtue of a constitutional provision he should be able to commence the said proceedings at any time, irrespective of the date on which the husband, being entitled to bring the action, became aware of the circumstances prompting reasonable doubts as to his paternity.
A difference of degree was deemed to exist between an action to establish paternity - where the point at issue is the applicant's right to personal identity and where imposing a time-limit is liable to infringe his/her right to knowledge of his/her parents' identities - and an action to disprove paternity, which is geared to defining the legal status of the initiator of the action vis-à-vis a relationship established by legal presumption.
According to law, the period in which an action to establish paternity can be initiated begins at the time of an objective fact (the date of the applicant's majority or emancipation), thus making it impossible to bring the action if the person has only become aware of the actionable situation after the lapse of a two-year period from the date in question. In this context, the rule that paternity cannot be established on the basis of an objective deadline criterion where the reasons for the action only emerge after this deadline has lapsed was declared disproportionate and incompatible with the right to personal identity. In such situations the provision enshrined an effective negation of the child's ability to ascertain his/her descent and was accordingly declared unconstitutional.
On the other hand, in attempting to disprove paternity (the subject of the judgment in question), the putative father has the same period for initiating proceedings as in the case of an action to establish paternity, but the period begins on the date of a subjective fact, viz his realisation of the circumstances potentially disproving his paternity. The Constitutional Court considers this period reasonable and appropriate for weighing up the interest of exercising the right to dispute one's paternity and properly considering the factors that might potentially influence the decision to bring an action. The putative father cannot contend that he was unable to exercise this right given that, drawing on his personal knowledge of the facts demonstrating the non-existence of a genuine relationship by descent, he still has sufficient time to disprove the presumption of paternity.
In conclusion the Constitutional Court holds that there is no parity between the two limitation periods and consequently decides not to declare the time-limit in question unconstitutional on grounds of violation of the rights to personal identity and development of personality.
The judgment was adopted unanimously, although two declarations were submitted along with the vote.
For Portuguese constitutional case-law on action to establish paternity and action to disprove paternity, see judgment 614/05 and the supplementary information provided.