Presumption of the child’s origin from the husband of the mother within 300 days of marriage termination or annulment, and in the event of judicial separation – de lege lata and de lege ferenda remarks

Abstract

The article is dedicated to the institution of the presumption of the child's origin from the husband of the mother as one of three ways to determine the child's origin from the father. In the opinion of the author, with the current availability of genetic tests (DNA), the regulation “extending” this presumption to children born after the termination or annulment of marriage, after the judicial separation and declaring any of the parents to be deceased, does not implement the principle of protecting the good of the child and in particular his right to grow up in the family and the identity right. The current shape of the regulation of the Family and Guardianship Code regarding this presumption significantly hinders, and certainly delays, the possibility of establishing biological paternity and granting the biological father the status of legal father, which is most desirable and justified. The current legal status is not favorable either for the child, his biological father or his mother's ex-husband. Taking into account the progress of genetics by the legislator and enabling the recognition of paternity on the basis of out-of-court DNA test results at any time of the child's birth after the termination or annulment of his mother's marriage by the genetic father, would significantly improve the paternity determination procedure and relieve the courts. These changes are also of great importance in the context of family evolution and the growing acceptance of informal relationships in which children are born and raise.