Paternity Lawsuits in Germany

While the maternity of a woman is easy to establish (cf. § 1591 BGB), the paternity of a man is much more complicated.

Paternity can be of a legal and/or biological nature. Thus it is possible that the natural father of the child is not the legal father. According to § 1592 BGB, the father of a child is the man,

“who is married to the mother of the child at the time of birth, who has acknowledged paternity or whose paternity […] has been established by a court.”

In principle, the German legal system assumes that a woman’s husband is also the father of the child born in the marriage. It is irrelevant how stable the couple’s marriage is. Even if the spouses are separated or divorced, the woman’s husband is legally considered the child’s father when it is born (cf. § 1592 no. 1 BGB). Accordingly, paternity initially depends on the relationship with the child’s mother. The decisive factor is whether the mother is married at the time of birth.

There is uncertainty regarding paternity if the child’s mother is unmarried at the time of birth. In such a case, the biological father can acknowledge paternity (§ 1594 BGB).

The term “paternity suit” stands for the legal proceedings that serve to determine and clarify the legal paternity. A distinction is made between three types of paternity action.

According to § 1598a (1) German Civil Code (BGB), an action for paternity clarifies the child’s natural parentage. The action can demand that the child or the respective parents consent to a genetic parentage test, i.e. it seeks to carry out a paternity test. The natural parentage action is mainly considered if a party refuses to undergo a paternity test. Through the aforementioned action, the party entitled to clarification can obtain the required consent from the competent court. If the examination is nevertheless refused, acquiring the required genetic material can be enforced with police assistance.

If the person entitled to clarification obtains consent from the court and an examination of the genetic samples is carried out, the result is communicated to all parties involved. However, the result does not lead to a legal consequence, such as legal paternity. To legally establish paternity in the case of a positive result, an acknowledgement or determination is required. The latter is done in the context of a further lawsuit.

Please note: Conducting a paternity test secretly and not based on court approval is prohibited under the Gene Diagnostics Act (GenDG) and is sanctioned with a fine. We strongly advise you not to do this and will gladly support you in asserting your rights in a legally permissible manner.

Biological paternity can be determined through an action to establish paternity (§ 1600d BGB). If there is no legal paternity according to § 1592 no. 1 BGB or § 1593 BGB or if this is doubtful, and if there has also been no acknowledgement of paternity (§ 1592 no. 2 BGB), the paternity of a man can be established by the above-mentioned type of action. The application can also be filed here by the child, the mother or the potential father. It should be noted that an action to establish paternity is only possible if there is not yet any legal paternity. If paternity already exists, it must first be declared invalid. This declaration can be obtained in an action to contest paternity.

If paternity is declared positive and thus effective by a parentage report, the biological father becomes the legal father by order of the competent court. This results in custody, maintenance and inheritance rights. While a mother often seeks a declaratory judgement for financial reasons, this enables the man to prove that he is not the child’s father. Conversely, by establishing paternity, the father has the opportunity to demand and enforce his right of access. Should you require further information on the subject, please feel free to read our articles on child support and child custody or contact us for a personal consultation.

It is not uncommon for the legal father of a child not to be the biological father. Experts estimate that in approximately every 10th child in Germany, the legal and biological father are not identical, and the parties involved can often be unaware of this. However, if a father doubts that he is actually the child’s father, it is possible under §§ 1600 ff. BGB to contest paternity. However, the alleged father must be able to show reasons that confirm his doubts about paternity. Reasonable doubts are justified, for example, if there was an inability to conceive, spatial absence, cohabitation with another man at the time of conception.

While there are no time limits for parentage and paternity establishment actions, paternity challenge actions are bound to a time limit. The filing of an action is possible for two years from the knowledge or suspicion of the falsely recorded legal paternity. Filing at a later date, on the other hand, is no longer possible.

In the proceedings, a paternity test is carried out. If this test is negative and thus proves that the applicant is not, in fact, the biological father of the child, all rights and obligations arising from the man’s legal paternity cease to apply. The man is no longer obliged to support the child’s mother and the child itself from this point on. Should the mother have known that the man was not, in fact, the biological father of the child, the man has a claim for damages. Otherwise, the man can assert the claim against the child’s biological father, should he be known.