Presumption of Intercourse – legal definition and significance
Die Presumption of Intercourse is a central legal term in German family law and criminal law. It refers to the assumption of sexual intercourse between two persons in certain situations, without the need for this fact to be individually proven. The presumption of intercourse arises in particular in the assessment of paternity, adultery, and in criminal law contexts. The following article provides a comprehensive and structured presentation of the term, its origins, its legal function, and its significance in current case law.
Historical development of the presumption of intercourse
The application of the presumption of intercourse can be traced back to Roman law. Even then, specific legal consequences were attached to the proof of intercourse. In German law, the presumption of intercourse was especially codified in the 19th and 20th centuries and was further refined in the course of the development of family law and criminal law. However, the modernization of the law of descent and the introduction of DNA analyses have changed the relevance of the presumption of intercourse in recent decades.
Function and areas of application
Significance in family law
In family law, the presumption of intercourse has traditionally played a role in establishing paternity. According to Section 1600d (2) of the German Civil Code (BGB), the man who had sexual intercourse with the mother of the child during the conception period is to be presumed to be the father of a child. If the mother was married, under previous law, the presumption was that the husband had intercourse with the mother during the relevant time (so-called satisfaction or intercourse presumption). This gave rise to the statutory presumption of paternity of the husband pursuant to Section 1592 No. 1 BGB.
The presumption can be rebutted in contestation proceedings, particularly by proving lack of intercourse during the relevant period. Through the possibilities of modern paternity assessments (DNA analyses), the presumption of intercourse has lost practical importance in family law, but remains normatively relevant for procedural purposes.
Requirements for the presumption of intercourse in family law
- Existence of a marriage or partnership between mother and husband
- Customary conduct of marriage and so-called marital cohabitation during the conception period
- No evidence of significant reasons against intercourse (e.g. long-term absence from location)
- Rebuttal possible through counterevidence (paternity test)
Significance in criminal law
In criminal law, the presumption of intercourse can be relevant particularly in so-called offenses against moral standards. In certain cases, it is assumed that the perpetrator had intercourse with the victim if no other persons were present in a shared residence and there is no evidence to the contrary. However, the presumption can and must always be substantiated or refuted by concrete facts.
A typical application can be found in the context of Sections 176 et seq. German Criminal Code (StGB) (sexual abuse of children), where the presumption of intercourse was used in individual cases as a supplement for the evaluation of evidence.
Legal assessment and burden of proof
Effect of the presumption
The presumption of intercourse is a so-called statutory presumption within the meaning of Section 292 of the Code of Civil Procedure (ZPO). It facilitates the establishment of facts in certain constellations, as it relieves the applicant of the actual burden of proof, as long as there are no specific objections or evidence that refute the presumption.
Rebuttal and challenging the presumption
The reversal of the burden of proof brought about by the presumption of intercourse can be rebutted (lat. ‘praesumptio iuris tantum’). It can, among other things, be rebutted by proving a prolonged separation between the parties, proven lack of sexual intercourse, or presence in different places at the relevant time. The introduction of genetic parentage testing has therefore been considered by the courts as an important advance for the effective rebuttal of the presumption of intercourse.
Significance and recent developments
Although the practical significance of the presumption of intercourse has diminished due to technical advances in paternity diagnostics, it remains an important building block in the interpretation of historical and still partially valid civil and criminal law provisions. It illustrates how the law pragmatically deals with typical facts of life and facilitates proof in substantive and procedural law.
Literature and further references
- German Civil Code (BGB)
- German Criminal Code (StGB)
- Legal commentaries on family and criminal law, especially on parentage and burden of proof
- Scholarly articles and court decisions on the development and current significance of the presumption of intercourse
Summary
The presumption of intercourse is a statutory assumption about the occurrence of sexual intercourse under certain legal conditions. It has, in particular in family law (law of parentage), a function that relieves the parties in legal transactions and is employed in exceptional cases in criminal law. The presumption can be rebutted by counterevidence and, due to genetic testing methods, its practical application is now of limited significance, but it remains normatively and historically relevant.
Frequently asked questions
What legal consequences does the presumption of intercourse have in German family law?
The presumption of intercourse is of considerable significance in German family law, especially in connection with the legal establishment of paternity. According to Section 1592 BGB, the mother’s husband is legally regarded as the father of a child if the child is born during an existing marriage. The presumption of intercourse is linked to this and assumes that the husband had intercourse with the mother during the statutory conception period. For paternity disputes, this means that the husband is fundamentally regarded as the presumed biological father until the contrary is proven. Anyone wishing to challenge paternity must present substantiated reasons and, if necessary, prove that intercourse could not have taken place (e.g., due to prolonged absence, incapacity, or medical impossibility). Due to the presumption, the court initially considers paternity to exist, which in effect shifts the burden of proof to the challenger.
How can the presumption of intercourse be rebutted in paternity proceedings?
The presumption of intercourse can only be rebutted in paternity proceedings under very specific conditions which must be detailed by the challenger. The case law requires concrete, plausible, and substantiated information that there was no sexual intercourse between the presumed father and the mother during the statutory period of conception. This can be demonstrated, for example, by proof of long-term absence from location, illness, permanent impotence, or similar circumstances that exclude sexual intercourse. General claims are usually not sufficient. If the challenger does not succeed in producing counterevidence, the statutory presumption of paternity, supported by the presumption of intercourse, remains in force, despite possible existing doubts. In case of doubt, the court may order a paternity test if serious doubts about paternity are presented.
What is the significance of the presumption of intercourse compared to paternity testing?
The presumption of intercourse is a statutory presumption that is particularly relevant in the initial legal examination of paternity and at the start of a contestation proceeding. However, it loses relevance as soon as there are clear indications or evidence against biological paternity. The judicial paternity test is the central piece of evidence for actually clarifying biological descent. If the test unambiguously establishes the lack of biological fatherhood, the presumption of intercourse ceases to apply and paternity is legally annulled. Thus, the presumption can be rebutted by contrary evidence, above all by a genetic test.
Does the presumption of intercourse also apply to unmarried couples?
The presumption of intercourse under Section 1600d BGB generally only takes legal effect within existing marriages. For unmarried couples, this presumption does not exist, as here paternity does not arise automatically due to marriage with the mother, but through paternity acknowledgment or court determination. Thus, the presumption only benefits husbands, not unmarried partners or presumed biological fathers without formal legal recognition.
Can the presumption of intercourse also play a role in the context of immigration law?
Yes, especially in the context of immigration law, such as when acquiring German citizenship by birth (§ 4 StAG) or for family reunification, the presumption of intercourse plays a role. If the child is born during the existing marriage of a German mother, the husband is deemed to be the father by law, as long as paternity has not been successfully contested. This presumption thus has a direct impact on residency or citizenship law constellations. However, in cases of doubt, a paternity test may also be required here to rule out cases of abuse or fraud.
What deadlines must be observed in connection with the presumption of intercourse in paternity contestation proceedings?
Paternity contests are subject to strict statutory deadlines under Section 1600b BGB. The contestation period is generally two years from the time the person entitled to contest learns of the circumstances indicating that the presumed paternity might be incorrect (e.g., doubts about descent). If the presumption of intercourse is not successfully rebutted within this period and contestation proceedings are carried out, legal paternity remains in place. Late contestation is generally excluded, unless there is an exceptional case, such as particularly compelling reasons.
Is the presumption of intercourse constitutionally permissible?
The legal construct of the presumption of intercourse has already been reviewed several times by courts and found to be constitutional. It serves to protect the welfare of the child and legal certainty for all parties involved by providing clarity regarding parentage. However, in each individual case, the child’s and the legal father’s right to knowledge of their own descent and the right to contestation must also be ensured. The Federal Constitutional Court has emphasized that the presumption of intercourse must not result in the unassailability of paternity once accepted, and that sufficiently effective ways of actually clarifying parentage must be preserved.
