Equality/non discrimination of children born out of the wedding lock on what concerns limitation periods for challenging the voluntary acknowledgement of paternity
Discrimination, list of prohibited grounds;
Paternity, disputed by husband;
Paternity, disputed, time limit;
Rights of the child;
07 of June of 2018
The public prossecutor has required for the review of the constitutionality of the norms contained in Articles 1842 (1) and 1859 (2) of the Civil Code in a concrete review case. The Constitutional Court found the norm contained in Article 1859 (2) unconstitutional for breach of the principles of equality and prohibition of discrimination against children born out of wedlock, enshrined respectively in Articles 13 and 36 (4) of the Constitution. The Court did not deem unconstitutional the norm contained in Article 1842 (1) (a) of the Civil Code, which establishes that the action to declare the non-paternity may be initiated by the husband of the mother within three years of his becoming aware of the circumstances that lead to the conclusion of non-paternity, notwithstanding the verification of possession of the paternity status (consolidated family ties between the plaintiff and the child).
I - The object of the appeal aimed at the appreciation of the norm extracted from Article 1859 (2) of the Civil Code, which establishes that the action to challenge the voluntary acknowlegement of paternity can be initiated by the presumed father at all times, and the rule extracted from Article 1842 (1) (a) of the Civil Code, which establishes that the action to challenge the paternity established by presumption may be brought by the mother’s spouse within three years of his becoming aware of the non-paternity, notwithstanding the verification of paternity possession status; the issue at stake was to determine whether the norms contained in Articles 1842 (1) (a) and 1852 (2) of the Civil Code, which treat two groups of persons differently, children who are the object of a voluntary acknowledgement of paternity (the 'target group') and children benefiting from the presumption pater est (the 'comparative pair'), amount to an arbitrary distinction between these groups.
II - In order to comply with the constitutional standards, it is necessary that this difference of treatment be rational, ie determined by the ratio legis and, in addition, that it does not pursue a discriminatory purpose, ie that the reasons for differentiating between the relevant social groups do not relate to the characteristics or attributes that define them, such as those set out in Article 13 (2) of the Constitution.
III - The question is not only to assess whether the difference in treatment is based on non-discriminatory grounds, but also that of assessing whether those grounds justify the exact measure of the difference in treatment between the target group and the comparative pair; far from offending the principle of the separation of powers - namely, the separation of the legislative power from the judicial power - this enhanced judicial scrutiny is a guarantee of the democratic authority of the law before those who have strong reasons to doubt the promise of equal treatment enshrined in Article 13 (1) of the Constitution.
IV – Although a narrow understanding of the prohibition of discrimination against children born out of wedlock might exclude the rules pertaining to the challenge of paternity from the scope of the constitutional principle of equality and non discrimination, the Court found this to be an intolerably limited perspective. Indeed, the establishing of paternity, in any of its typical modalities, operates either on the basis of legal presumptions (among which the pater est rule ...) or on the basis of the voluntary expression of the will of the father and not on the direct proof of progeny, ie the paternity is established according to the criteria defined in the legal system regardless of the actual correspondence between legal and biological affiliation.
V - The constitutional prohibition of discrimination against children born out of wedlock stems from a stigmatizing distinction between legitimate and illegitimate children, dating back to a time when the direct proof of progeny was scientifically impossible; by admitting different regimes for raising action against the presumed and the voluntarily acknowledged paternity, the law discriminates against in the sense of Article 13 of Constitution.
VI – Historically, the difference in the legal regimes for judicially challenging the paternity established on the basis of presumptions and the voluntary acknowledgement of parternity was grounded on the defence of the moral and patrimonial integrity of the traditional family, in which children born out of wedlock, ie., illegitimate, were looked upon with disregard and distrust; the original regime rested on a social prejudice against 'illegitimate' children and had as its more or less ostentatious purpose to discriminate against them (or to privilege 'legitimate' children) .
VII – These provisions have remained unaltered in order to protect two main interests: family peace, especially that of the child, but also that of the spouses; and the correspondence between legal affiliation and biological truth; however, in both cases the difference in legal regimes does not withstand a strict control based on the principle of equality.
VIII - The protection of family peace is based on a sociological presupposition that was justified when the Code was drafted, in the 1970’s, but which does not adhere to present-day reality, that is, the presupposition that paternity based on marital presumption is part of a stable and lasting family context; on the other hand, it is increasingly common for children to be born out of wedlock and there is no reason to believe that legal action against the presumed paternity of the husband of the mother is in general more disturbing of the "harmony and family peace" than the legal action against voluntarily acknowleged paternity; and even if one was to admit that in view of the present social data, it is still possible to formulate such a general judgment, this would still not justify the disparity between the legal remedies made available in both cases: a short period of expiry in case of impugnation of paternity by the husband of the mother and the absence of any deadline to act in case the applicant is challenged by the parent.
IX - The protection of the biological truth is also insufficient to justify the diversity of treatment between children whose paternity was established by the presumption pater est and those whose paternity was established by voluntary acknowlegement; the relative propensity of paternity established by voluntary acknowledgement to depart from biological truth might justify some difference between the regime of presumed paternity and that of voluntary acknowledgement, yet this interest is too weak and diffuse as to justify the existence of radically divergent legal solutions and too artificial to remove, by itself, the strong and well-founded suspicion of discrimination that falls upon this legal option. The Court therefore found the norm contained in Article 1859 (2) of the Civil Code unconstitutional for violation of the principle of equality and prohibition of discrimination of children born out of wedlock.
X – The norm contained in Article 1842 (1) (a) of the Civil Code - which allows for the husband of the mother to raise an action in order to establish the non-paternity within a period of three years subsquent to his becoming aware of the circumstances underlying the action, is a reasonable solution that strikes a balance between the conflicting rights of the plaintiff (the affirmation of the biological truth) and those of the child (interest in family stability and right to protection during childhood). Moreover, this is an area where the legislator enjoys broad freedom, firmly anchored in the democratic principle, and therefore a judgment of unconstitutionality would have to demonstrate that the solution found by the lawmaker was manifestly disproportionate.
XI – As this is not the case, the existing system, although not the only admissible one, is a balanced response to a sensitive problem and Article 1842 (1) (a) of the Civil Code, which provides that the husband's action may be initiated by the husband of the mother within a three years period was not deemed unconstitutional.
Rulings 486/2004, of 07.07.2004, 23/2006, of 10.01.2006, 589/2007, of 11.12.2007, 609/2007, of 11.2.2007, 446/2010, of 23.11.2010, 401/2011, of 22.09.2011, 309/2016, of 11.06.2006