Affirming or Challenging Paternity in Germany

German law is quite straightforward, in most cases, regarding maternity. It states that the “mother” is always the person who has given birth to the child, § 1561 BGB. This is even the case when the child is not genetically hers because, for example, it has been conceived with an egg cell of another woman.

In contrast, paternity can be established in three different constellations:

The father of a child is the man who

• Was married to the woman at the time of the birth of the child,
• Has legally recognized his paternity,
• Whose paternity has been established in court, § 1592 BGB.

According to German family law, if a woman is married and gives birth to a child, her husband will automatically be considered the biological and legal father of said child. It is not relevant if the marriage is unstable or even if the divorce proceeding is already underway; the husband is still considered the father of the child. Paternity in Germany is therefore linked to the relation of the child’s mother. In short, it depends on whether the mother is married or not.

In consequence, there is uncertainty regarding paternity if the mother is not married at the time of the child’s birth. In such a case, the biological father could have his legal fatherhood recognized by the court, § 1594 BGB.

In Germany, the term “paternity lawsuit” represents process possibilities, which serve to either find or establish the legal paternity of a man. There are three different forms:

According to § 1598a Sec. 1 BGB (German Civil Code), Parentage Action serves the establishment of the child’s biological heritage. This is done through a paternity test. Within the action, it is possible to make them comply with a genetic heritage examination from the respective child and parent.

The Parentage Action becomes especially relevant when one party negates participating in the genetic heritage examination. By the action, the entitled party for verification can ask for the pending consensus on the examination. In case of further negation to participate, it is even possible to perform the DNA extraction by police force. Does the entitled party for verification receive the consensus through the court when the examination of the DNA sample is performed? The other party can demand access to the results or ask for a copy of them, § 1598a Sec. 4 BGB. Therefore, the result of a parentage action in Germany clarifies the child’s biological heritage. This alone does not lead to a legal consequence. In case of a positive outcome, the paternity must then be established in court. This requires further legal action.

Please note: The secret performance of a paternity test, meaning a paternity test without consensus reached through court, is prohibited under German law and leads to a fine.

This lawsuit is based on the paternity test to legally determine the child’s paternity. As mentioned above, parentage action alone does not lead to a determination in front of the court. It merely serves to prove the existing or non-existing paternity.  

The paternity determination lawsuit requires the following aspects: 

• No existing paternity as regulated in § 1592 Nr. 1 BGB or § 1593 BGB, and the respective man is not married to the mother at the time of birth,  
• The paternity is not recognised as stated in § 1592 Nr. 2 BGB.  

If the requirements are met, the court will recognise the paternity.  

The child, the mother, or the potential father can file the motion.  

This lawsuit is only possible when there is no existing paternity. In case of an existing paternity, it first must be declared invalid. This can be done within the frame of a paternity contestation lawsuit. If a DNA analysis finds the paternity positive and it is declared valid, the biological father will become the legal father by a court ruling. In consequence, child custody, child support, and inheritance claims arise. 

A paternity determination lawsuit in Germany can become relevant if the mother wants to enforce child custody claims against the father or if the father wants to enforce his right of contact against the mother. 

It is not a rare case, that the legal male guardian is not also the child’s biological father. Experts estimate that in Germany, approximately of every tenth child, the legal guardian and the biological father are not identical persons and that the concerned persons are unaware of this fact. If the father doubts his biological paternity, he can contest his paternity according to §§ 1600 f. BGB. However, he must show reasonable evidence for his case, which affirms his doubts about his paternity. Reasonable doubts are, for example, infertility, physical absence, or coitus with another man at the time of conception.

While there are no deadlines for the parentage action and the paternity determination lawsuit, the paternity contestation lawsuit is, in fact, bound to one. Filing a lawsuit is possible within two years from the knowledge or suspicion of falsely documented legal paternity.

During the process, a paternity test will be performed. In the case of negative results, all legal rights and obligations that result from the paternity become void. From this point forward, the man is no longer responsible for paying support towards the mother or the child. In case the mother had knowledge of the fact that the man was not the biological father, the man then has a legal claim to recover damages from her. However, since he will have to prove that the mother had knowledge of the factual circumstances, the chances of a successful claim are unlikely. If the biological father is known, the man can also recover damages from him. However, a right to know the biological father’s identity only exists for the biological child. The man has, therefore, no legal claim to learn the identity of the true biological father.

In January 2024, the Federal Ministry presented key points for reforming the law of descent in Germany. The reform includes changes to descent, adoption, and parental law to adapt the law to the modern and diverse reality of families and their different constellations. The Federal Ministry expects the legislative process to be completed by the year 2025.

Which changes become relevant for the contestation of paternity in Germany?

• The deadline to contest paternity (in the future, it will be the contestation of parenthood), which is currently two years, will be shortened to one year in the interest of the affected child.
• For individuals entitled to challenge (paternity, inheritance, etc.), the contest deadline should not expire before they reach the age of 21.
• Furthermore, for a man who acknowledges paternity, although he already knows at this moment that he is not the biological father, the right to a contestation lawsuit will become void.
• In addition, a potential motherhood of another woman (within the frame of a same-sex partnership) is supposed to contest motherhood in the same way a potential father can contest fatherhood.
• Also, in case of contestation by the birth mother or by the child, the existing social family relationship with the other parent ought to be considered. In the individual case, the family court ought to examine whether the interest in contesting overweighs the interest in the continuation of the current parenthood. In case of doubt, the interest in continuing the existing family should outweigh it.