by German Lawyer Silvia Binder and English Solicitor Elissa Jelowicki
Imagine you get to know a woman at the birthday party of your best friend; it is love at first sight. A whirlwind romance begins and you decide to get married. Then your wife gives you the happy news that a child is under way. After your child is born, your sweet little baby looks like the spitting image of your best friend and it slowly dawns on you that you were cheated on by your wife – the woman of your dreams.
If this was not bad enough to realize, you are then confronted with child maintenance claims. Your financial situation will be tied for the next 20 years in maintenance payments. At this point, you must be asking yourself how you can escape such a nightmare.
In England, challenging paternity is more straightforward than in Germany. Until officially declared otherwise, it is assumed that the father of the child is the biological father if he is on the child’s birth certificate and/or married to the child’s mother at birth.
The only way to prove that you are not the father of the child and to therefore get out of paying child maintenance support is to undertake a DNA test. The person named as the father will himself have to pay for the DNA test and continue to pay maintenance until the results of the test come out.
The Child Support Agency will assume that you are the father of the child if the mother of the child names you as the father and you are unwilling to undergo a DNA test.
If the DNA test proves that you are not the biological father of the child, the Child Support Agency or Child Maintenance Service may: refund payments made after the date that you denied you were the parent and refund the cost of the DNA tests arranged through the service. In addition, they may also ask the other parent to pay back all of the payments.
You may be able to get a DNA test yourself or be asked by the Court to do one. The Child Support Agency and the Child Maintenance Service can also use DNA testing to solve parentage. You can apply and fill in the form to get a DNA test here.
It costs £365 to apply. You can also arrange to get a test done privately. However, if matters are already tense between you and your ex-partner it is probably best to go through an approved list of organizations provided on the Child Support Agency’s list.
In Germany, however, the formalities are much more complicated. According to German law, there are strict deadlines to meet when you want to successfully challenge paternity.
If the child was born during the time you were married to the child’s mother, you are automatically deemed to be the legal father of that child. This legal presumption is not rebutted simply because you are able to present evidence that you are not also the biological father.
Instead, you will need to file a lawsuit formally contesting paternity within two years after you have become aware of circumstances that raise doubts in regards to your paternity. The relevant statutes of German Family Law are available here.
However, in order to start a lawsuit challenging paternity, you will have to present other circumstances that you are not the parent. For example:
• that you had no contact with the mother during the period of conception;
• that you have concrete evidence that the mother had other sexual relations during the period of conception;
• that you were not generative during the time of conception;
• that you have a DNA test that evidences another man to be the biological father.
German law does not allow the father to simply take the child’s DNA and have such a test made secretly. Instead, in order to be admissible evidence, the test must be made with the consent of mother and child. If the mother (or the child) refuses consent, the father can apply to German Family Court to order the child and its mother to provide material for the DNA test, see section 1598a German Civil Code (here).
If you are ever faced with such an awkward predicament, do not hesitate to seek legal advice in order to meet the deadlines and avoid the situation whereby you are financially restricted by maintenance claims for decades.
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The law firm Graf & Partners and its German-English forensic services and litigation department GP Chambers was established in 2003 and has many years of experience with British-German and US-German family law and probate matters, including the representation of clients in German litigation and arbitration proceedings. If you wish us to advise or represent you in a German or cross border legal matter please send an email or call us on +49 941 463 7070.