Germany’s federal supreme court – the Bundesgerichtshof (BGH) – recently ruled on August 30, 2023, that it is possible for paternity to be acknowledged even if the child’s mother has already passed away (case ref.: XII ZB 48/23). Under these circumstances, her consent is no longer required.
In cases involving married couples, German family law provides that the mother’s husband automatically becomes the legal father. This is the case even if he is not the child’s biological father, notes MTR Legal Rechtsanwälte, whose practice includes family law and questions of paternity.
Acknowledgement of paternity and unmarried parents
If, however, the parents are not married, the mother’s partner does not automatically become the father. While the partner may acknowledge paternity, it is also necessary to obtain the mother’s consent in this scenario.
Unfortunately, this proved to be impossible in a recent case heard by the BGH, as the mother had already passed away. At the time, the daughter’s birth certificate made no reference to the father, which the daughter sought to change by applying to have an acknowledgement of paternity formally recorded in the register of births. The putative biological father had already acknowledged paternity by means of a notarized document that year before himself passing away, with the child’s mother having died several years earlier.
Registry office questions the validity of the acknowledgment of paternity
Because the mother had already passed away, the competent registry office had doubts about the validity of the acknowledgment of paternity, and these doubts were shared by both Schweinfurt’s district court, the Amtsgericht Schweinfurt, and Bamberg’s higher regional court, the Oberlandesgericht (OLG) Bamberg. In rejecting the application, they concluded that it is no longer possible to acknowledge paternity following the death of the mother.
The daughter took the case all the way to the BGH, which ruled in her favor. The Karlsruhe judges held that the acknowledgment of paternity was valid, as the requirement to obtain the mother’s consent lapses after she passes away. In cases such as this one, the child’s consent or that of their legal representative is sufficient.
Interests of the child take precedence
The BGH considered the objection that without the mother’s consent there is a higher risk of the acknowledgement of paternity being false to be immaterial. The consent of the child, or their legal representative if the child is not yet 14 years old, provides sufficient protection against false acknowledgments of paternity. Given that the mother has already passed away, the acknowledgement no longer has any effect on her legal status.
The BGH therefore gave priority to the child’s interest in acknowledging paternity, which the child would otherwise have to establish through a costly and time-consuming process. However, in cases where the father has already passed away, biological paternity can no longer be established. And yet the court stressed that a child has an interest in acknowledging paternity, particularly following the death of their mother., and particularly in view of the fact that her death also raises a number of legal issues, such as possible inheritance claims.
MTR Legal Rechtsanwälte advises on family law, including on issues related to acknowledging paternity.
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