Disclaimer of paternity
The Law Firm Cecatiello is very attentive to issues related to filiation.
With reference to the disregard of paternity the Italian legal system foresees two possibilities, the first if one wants to ask for the paternity of a child born in a marriage condition to be disregarded, the second in the event that the disregard of a child born of a de facto couple is requested.
The action of disowning paternity is the procedure that must propose who intends to ascertain and declare the lack of the biological relationship between a father and a son born during the marriage.
There is a presumption of law that the husband of the mother is also the father of the child there is talk of "presumption" of paternity when the birth occurred at least 180 days after the marriage and not more than three hundred days after the annulment or divorce. The presumption of paternity ends if three hundred days have elapsed since the separation or the provision by which the judge authorizes the spouses to live separately.
It is possible to propose the action of disavowal only in three mandatory hypotheses:
1) non-cohabitation of spouses in the period between the three-hundredth and one hundred and eightyths before birth;
2) if, in this same period of time, man was suffering from impotence, even only to generate (such as to a disease then cured);
3) if the wife has had an extramarital affair and has hidden her pregnancy and the birth of her child.
This means that a husband can not ask, for example, to disavow a child who has, at the time, wanted to recognize even in the knowledge that it was not right.
The action can be proposed, with the assistance of a lawyer, only by some subjects and within specific time limits.
The wife within 6 months of childbirth or when she learned of the impotence to generate her husband at the moment of conception; the husband within 1 year from the day of birth, if he was in the place where the child was born and he tries to ignore his own powerlessness to generate, or from the day he became aware of his wife's adultery or from the day of his return to his family home if he was not in the place where his son was born. If, however, he succeeds in proving that he did not know of the birth in such days, the term runs from the day when he was informed of it. In any case, 5 years after the birth of the child, the action can no longer be proposed. The adult child or a special administrator appointed by the judge at the request of the child who has completed the 16 years or of the public prosecutor, if of a lower age. The limit of five years, however, does not work towards the child who can, in fact, always assert the action; descendants or ascendants in the case of the death of the alleged father or mother. In this case the term will start from the death of the presumed parent, from the birth of the posthumous child or from the achievement of the age of each descendant; the spouse or descendants of the child, within a year of his death or when they have become adults.
Conditions change significantly when one wants to challenge the biological relationship between a father and a child born out of wedlock.
In this hypothesis, in fact, there is no presumption of paternity, even if it is a stable cohabitation. The action to appeal for recognition due to lack of truth will therefore be promoted.
Action to challenge the recognition due to lack of truthfulness.
The action can be promoted on the simple assumption of the defect of biological relationship: by the author of the recognition (also made in the knowledge that the child was not), within one year from the day of the recognition of the act of birth; if, however, the recognition has been violently removed, it must be proposed within a year since this violence has ceased; if he proves that he does not know his own powerlessness to generate at the time of conception, the action must be proposed within 1 year from when it became known.
In the same term, the mother who made the recognition can prove to have ignored the impotence of the alleged father.
The action can also be proposed by anyone who has an interest such as, for example, the spouse of the person who made the false recognition. The interest in promoting it must not necessarily be legal but also moral in nature. In any case, the action should be proposed no later than five years from the annotation of the marginal recognition of the birth certificate;
the action is also feasible by the adult child or by a special administrator appointed by the judge, at the request of the child of at least fourteen years or by the public prosecutor or the other parent, if the child is younger.
The proof of the inexistence of the biological bond between father and son can also be given through testimonial declarations.
The currently most used evidence is that through DNA investigation that allows us to ascertain or exclude paternity.
The acceptance of one of the two actions involves the extinction of the paternal filiation relationship, including the effects on the name, citizenship and parental authority.
It must be said, however, that the loss of the surname is not automatic because the court can authorize the conservation of the surname attributed to the child at birth, if this is "connotative and distinctive element of his personal identity".
Armando Cecatiello, Lawyer Milan and Rome.
Law Firm Cecatiello, specialized in family law, matrimonial lawyer, divorce lawyer, minor maintenance / custody.