Amendments to the Family Code (FC) that concern paternity disputes, and more specifically disputing paternity by third parties, were made at the end of 2020. The legislator has introduced a new provision that allows any third party claiming to be a child’s biological father to contest paternity within one year of learning of the child’s birth. The legislator has explicitly stated that when issuing a decree, the court shall be guided, first and foremost, by the child’s best interest.
The Constitutional Court has recently ruled on this issue with a decree in a lawsuit that was brought by the Ombudsman Prof. Diana Kovacheva. The lawsuit concerns §5 of the Transitional and Final Provisions of the FC from 2020, and this paragraph states as follows: “For any person for whom the circumstances substantiating the right to claim under Art. 62, para. 1, sentence three, and para. 5, sentence one, were present before the effective date of this law, the terms for bringing the relevant claims shall run from the effective date of this law”.
Following the amendments already made, now there are two sets of grounds upon which paternity may be disputed. First of all, according to Art. 62, para. 1, the presumptive father of the child and the mother’s husband may challenge paternity within one year of learning of the child’s birth by proving that the child could not have been conceived by him or if certain “circumstances disproving paternity became known at a later stage for reasons beyond the reasonable control of the claimant, and the claim may be filed up to the expiration of one year from the moment of becoming aware of these circumstances but no later than the child’s coming of age.” The second option is clearly stated in Art. 62, para. 5 of the Family Code, according to which a third person may challenge the presumption of paternity within one (1) year from learning of the child’s birth, and the said third person must necessarily combine this claim with a claim to establish his own paternity, because the third person’s legal interest stems from this. If these claims are joined and if the said third person is not determined to be the father in this lawsuit, both claims will be dismissed, even if the presumptive father is not the real father, to avoid leaving the child without established paternity. The old regulations did not provide legitimate grounds for a third person to bring such claim.
The Constitutional Court has expressed its opinion on this matter by approving the recently made amendments to the FC, emphasizing that there is a limitation in presenting both of these claims – the child’s coming of age. This conclusion can be derived from the decree in the lawsuit, which states “Consequently the formal absence of a deadline for exercising the right under §5 Transitional Provisions of the amendmentя of the Family Code in the context of Art. 62, para. 5, sentence one of the Family Code, to which the disputed provision refers to, does not give grounds to accept a not limited by the child’s coming of age possibility of exercising the subjective right by a third person who claims to be the biological father of a person with established presumptive origin.” In other words this means that any male person may dispute the parentage of a child, and the Constitutional Court advocates the view that in this way the legislator will overcome an injustice that was committed in the past before the amendments were made.
On the other hand, this gives the possibility that paternity disputes may also affect the interests of other persons who have built a relationship with the child over the years in various forms In this line of thought, the Constitutional Court accepts that: “the court’s obligation to decide the dispute, as established in Art. 62, para. 5 sentence three of the FC, taking into account the ” the child’s best interest”, excludes such possibility”.
The overall approach to this speciific issue should be applied selectively by the designated courts, as the reasons for the decisions of the Constitutional Court not expressed in interpretative rulings have no binding force
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