Le droit de la filiation légitime à la fin de l'Ancien Régime

Abstract

Marie-Thérèse Allemand : The right of legitimate descendence at the end of the old régime. Under the Old Régime the Roman adage pater is est quem nuptiae demonstrant is the foundation of the right to legitimate descendence ; Parlements applied it rigorously and only allowed one exception, based on the physical impossibility for the spouses to cohabit. The argument of moral impossibility, based on facts indicating that the husband is not the father of his wife's child, was rarely accepted by courts. The reasons for this prudence are perhaps imputable to the difficulty of defining a system of proof. Nevertheless, on the eve of the Revolution, the courts systematically excluded, for civil cases, recourse to oral proof unaccompanied by any written proof. Yet, differences between courts, or within the same court, are numerous and show, in the absence of any particular legislation, the incomplete nature of the legal edifice in this matter.