Disclaimer of paternity '
filiation, as well as the legitimate family, is one of the founding institutions our system, protected and recognized by the Italian Constitution and the entire regulatory apparatus. It is clear, therefore, the special attention that the legislature has devoted to the action of disavowal of paternity, which aims the negative assessment of the state of legitimacy of a child born as a result of the Act.
By this action, then the alleged father (or other entities with a legitimate and strictly defined by law) bring the matter before the judicial authorities to ensure that the person shown by the records of birth was her son, not really is from the biological point of view. In particular, the major difficulty in this area has always been the search for a delicate balance between two conflicting requirements protection. On the one hand, in fact, there is a need to ensure the truth, understood in this context as a precise knowledge of parenting and organic, that is, as an awareness of who he really is their parent (favor veritatis), and second, this requirement have to balance with the opposing need to protect the legitimate family (legitimitatis favor), provided that the action tends to disregard its own to eliminate the status of legitimate child, which is therefore a prerequisite.
course this balance is strongly ingrained in the historical development and cultural context of a country, so if until some time ago legitimitatis favor the privileged, today's legislation and case law have sought increasingly to facilitate the search for truth in the context of family relationships. Precisely for this purpose has been reformed several times over the years, the discipline of disavowal of paternity, with the clear intention to give priority to favor veritatis, despite the legal apparatus is still very rigorous requirements and procedures as regards the exercise of disavowal of paternity.
In this regard, and just to demonstrate how difficult it is to reconcile the two conflicting requirements, in response to those who argue that the current regulatory environment is still too restrictive and too oriented legitimitatis favor, the Supreme Court noted that "even in the face of a marked benefit for a compliance status to reality procreation - clearly expressed in the gradual expansion of the assumptions in the legislative investigation of the biological truth - the favor veritatis not an absolute value of constitutional importance which must be affirmed, however, since Article 30 of the Constitution did not attach a value leading to unfailingly biological truth than legal, but in having the fourth paragraph that "the law lays down the rules and limitations for the determination of paternity," he defers to the legislature the power of ordinary to favor, while respecting the values \u200b\u200bof other constitutional, statutory paternity than the countryside, and to establish conditions and procedures to enforce it, so reliable in the evaluation generally the best solution for the realization interest of the child "(Cass. Civ. 20254/04).
those circumstances, to have a complete repudiation of the current rule, it must mention the discipline of legitimate filiation, which is its logical assumption. More specifically, the Civil Code stipulates that the status of legitimate child when you purchase four conditions concur: there is a valid marriage and the son born of the woman is married. The recurrence of these two conditions is immediate proof, but rather would make the marriage certificate and birth certificate. Conception occurred in wedlock. In relation to this requirement, the Civil Code, art. 232, states that "it is presumed conceived during the marriage a child born one hundred and eighty days have elapsed from the celebration of marriage and have not yet passed three hundred days from the date of the annulment, dissolution or termination of the civil effects of marriage "(so-called presumption of conception in wedlock.) The unborn child is "created by the husband." Even in relation to that condition, the Civil Code Article 231 that the cd. presumption of paternity, that the husband is presumed father of the child conceived during the marriage.
The conditions for conception in wedlock and paternity presumptions are, in the sense that the law presumes that a child born within the period of time from the eightieth day after the three hundredth day celebration of marriage before the dissolution of that has been designed constancy of marriage as the legal father is assumed that the same is the husband. They are, however, assumptions concerning, in the sense that the law allows to be given evidence to the contrary, but only under the circumstances and the conditions of Article 235 of the Civil Code. Article 235 cc, in fact, describes the conditions under which, even in the circumstances referred to in Article 231 of the Code and, therefore, having assumed the status of the unborn child legitimate, you can bring an action for specific disclaiming paternity.
The purpose of this action is, therefore, to remove the status of a legitimate child, ensuring that it has been conceived by someone other than the alleged father's art. 231 cc, in these assumptions, then, the legislature favors the principle of favor at the expense of favor veritatis legitimitatis. However, just looking for a balance between the conflicting requirements stated above, the legislature recognizes that this action may be exercised only in four cases absolutely certain.
The first situation occurs when "the spouses have not cohabited in the period between the three hundredth and the eightieth day before the birth." From the original concept of cohabitation Understanding how to live together can not be done today has embraced a meaning much wider range of cohabitation, "which included the situation where the couple - despite having lived in the same housing or lived in the same city and still had chance to visit or meeting - have found themselves together in circumstances of time and place and in personal and subjective conditions that make it unlikely they could not have had intimate relations. From this it follows that, when the plaintiff has not demonstrated the coexistence, in the sense defined, the defendant must it feel, providing presumptive appropriate elements, including temporary restoration of cohabitation, or any meetings that are occasional or one-off resulted in intimate relationships "(Cass. Civ. 86/498).
The second is the case in which, during the period between the three hundredth and the eightieth day before the birth, the husband was suffering from impotence, even if only to generate. Therefore, the alleged father who wishes to deny the child must prove, throughout the period of the conception of an impotence that may be demonstrated with the cd. seminology test, it is sufficient to demonstrate, during this period, a constant and complete absence of sperm. This is what is required from noma, however it is not necessary in order to ascertain the causes of azoospermia or whether such an anomaly is reversible or not.
The third case occurs when the period of conception, "the wife has committed adultery or held her husband concealed her pregnancy and the birth of his son. In such cases the husband is allowed to prove that the child has genetic characteristics or blood group incompatible with those of the presumed father, or any other fact tending to exclude paternity. "
Article 235 cc actually contains three different assumptions and independent of the presence of which you can activate the action of disavowal of paternity. The first occurs when the wife has hidden her husband, pregnancy and childbirth. In particular, the concealment of the pregnancy makes it acceptable for the action of disavowal of paternity, irrespective of concealment of birth, when his wife has concealed the pregnancy with a conscious and voluntary behavior, even if not preordained, that is devoid of belief in the 'estrangement from her husband at conception, when such behavior has persisted for an appreciable period of time between knowledge of pregnancy and her communication with her husband, over between the three hundredth and the eightieth day before the birth (Cass. Civ. 8420/94).
The second is the case of adultery of the wife during the period of conception. It was relevant in this context that an intervention by the Constitutional Court delivered a Judgement of 06.07.2006, No 266. In particular, prior to that ruling, the Court considered that the blood test and genetic which Article. 235, first paragraph, no 3 (so-called DNA testing) was only possible subject upon proof of adultery to his wife. Means that we need first to prove that his wife had committed adultery and only then could introduce tests to verify their non-compatibility of the genetic / blood of the "alleged" child with those of the "alleged" father.
The Look, with that assistance, said "illegal art. 235, paragraph 1, no 3, cc, to the extent that, for the action of disavowal authorship, makes the examination of technical evidence, which indicates that the child has genetic characteristics or blood group incompatible with those of the presumed father, upon proof of adultery by the wife. " Evidently, it was recognized that the outcome of DNA testing may be an implicit proof of adultery, and this mainly due to advances in medical science which are now is that this test leads to results almost equivalent to certainty. Therefore, to date, it is possible, regardless by proof of adultery, submitted in support of the genetic and hematological tests in question aimed to show that the genetic / hematology of the child are incompatible with those of his father. In this context, it may happen that the spouse against whom the action is proposed waste levy required to undergo technical inspections. If this happens, it is now the clear authority that the court may consider such refusal in accordance with art. 116 cpc, in particular, the court by such denial, if unjustified, can be seen test subjects on which to base its conviction.
Regarding procedural issues, standing to bring an action for denial is the alleged father, mother, son, once he has reached the age of majority. The youngest son can not take action on their own, but if you already sixteen, only through a guardian ad litem appointed by Judge ad hoc, but if the child is under sixteen, the action may be given by the public prosecutor (art. 244 cc). In the event that the holder of the repudiation die before it has been brought, the right to pursue the action is transmitted to the heirs (art. 246 cc).
Specifically, in the case of death of the presumed father or the mother are legitimate descendants and ascendants, whereas in the case of death of the child, are entitled the spouse or ascendant. With regard to the legitimation, the alleged father, mother and child are litisconsorti necessary. The action, just for the sake of stability and certainty in relation to the status of legitimate child, may be brought within a fairly short decadenziali; of facts, "the limitation periods for bringing an action for disavowal of paternity contribute .. . to define the context in which the denial of paternity must be available and, with it, to delineate the biological balance between truth and certainty of status as presumptively attributed "(Cass. Civ. 6302/07).
These terms differ according to individuals who wish to propose that action: the mother may bring his action within six months following the birth of the child or, in case of inability to create following the date on which he becomes aware of that impotence (Constitutional Court, sent. No. 170 of 05.14.1999), the presumed father may bring his action within one year from:
(i) the birth of his son, if he was present;
(ii) on his return he was away;
(iii) the day in which it was aware of the birth, if it proves not to have heard about before, (iv) the day on which he was aware of its inability to generate (Constitutional Court, sent. No. 170 of 05.14.1999);
( v) the day on which he had knowledge of the adultery of his wife in the case referred to in paragraph Article 3. 235 cc (Constitutional Court, sent. No 134 of 06.05.1985).
the child may bring his action within one year of age starting on or after the time when it became aware facts that make it challenged in the action. It can never bring such an action the alleged biological father, which remains untouched throughout the procedure.
The ruling accepts that the act of repudiation is a ruling finding of association, in that it involves a change in the status of the child and, as such, it has effects erga omnes. These effects, in practice, are carried in the fact that the son disowned: he loses his status as a legitimate child and the surname of the husband of the mother acquires the status recognized natural child by the mother alone, unless the subsequent recognition of the true father.
* Mr. Matthew Santini, Dr. Beatrice Maiolini, lawyers in Rome
Posted by osservatoriosullalegalita.org
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