Presumption Of Paternity Research Articles

혼인 중인 여자와 남편 아닌 자 사이에서 출생한 자녀에 대한 생부의 출생신고

The Constitutional Court of Korea declared in the decision of 2021 HunMa975 on March 23, 2023 that the unconstitutionality of Articles 46(2) and 57(1) and (2) of the Family Relationship Registration Act for infringing upon the constitutional right to be registered at birth for illegitimate children born to married women, ordering the legislature to enact remedial legislation by May 31, 2025. This paper proposes a scientific method for determining paternity, whereby a biological father can prove paternity through a test conducted by an agency certified by the Minister of Justice before the child’s birth. In such cases, the presumption of paternity can be immediately rebutted, allowing the biological father to register the child as his own. The paper also suggests that after the child’s birth as a child of his mother’s husband, a biological father can bring an action to deny of paternity in condition that he can demonstrate that his wife could not have conceived a child with her husband due to a long-term separation at the time of conception and if he becomes aware of this fact within two years of the child’s birth. This proposal seeks to strike a balance between the principles of bloodline truth and the child’s welfare.

Presumption of Paternity, But Not Equality

Abstract: Through recollection, Junior, a lawyer who has spent a decade prosecuting intimate partner violence, is faced with the biases inherent to legal presumption when she finds herself having to prove to the Pennsylvania Superior Court that the child she brought into the world with her wife can legally be declared hers. In the context of family law, a child born of a married couple is presumed to be the husband's, regardless of biological relation. However, this presumption only applies to cis-men. It does not apply to cis-women wives who, though not biologically or gestationally related to a child, have taken on the full breadth of financial responsibilities, emotional devotion, and medical actions necessary to bring that child into the world. With queer women's rising reliance on ART, cases like Junior's are happening more and more.

Contesting the presumption of paternity in Switzerland: A comparative perspective

This paper is devoted to questions of contesting the presumption of paternity in Switzerland. The research covers both substantive and procedural issues, in particular the admissibility and the scope of the claim, the group of entitled persons, the time frame, the distribution of the burden of proof, and the consequences of lifting the presumption. Special attention is paid to the legal position of the biological father who is not the legal father. The analysis of Swiss law is accompanied by a Polish-German comparative legal perspective. The research leads to the conclusion that the mother’s marital status cannot absolutely determine the child’s affiliation. The legally imposed affiliation of the child, based on the principle of pater est quem nuptiae demonstrant, should be made more flexible. The biological father should have independent legal instruments to verify the child’s affiliation. In particular, he should be entitled to the challenge of paternity in the prenatal and postnatal periods. Finally, it is necessary to develop uniform and transparent criteria for questioning paternity, which will be created after carefully balancing all the opposing interests.

)A Revisit to the Non-Exception Theory on the Presumption of Paternity on Supreme Court Cases no. 2016Mu2510 and 2021Mu13293

According to the Korean Civil Act, the father of a child born from a matrimonial relationship shall be presumed to be the husband of the mother of the child. Once such presumption is made, it can be rebutted only by the denial of paternity claim, which can be raised by each spouse within 2 years after he or she finds out the falsity of the presumption. Presumption of paternity has been recognized in Korea as well as in many countries, as father-child relationship is hard to be proven by externals, unlike mother-child relationship. However, as Korean Civil Act had prescribed the filing period for the denial of paternity claim too short(within 1 year after the father becomes aware of the birth of the child), the Supreme Court contrived so-called ‘exception by externals theory’, according to which the presumption is not made when it is evident from externals that the married couple did not live together. Now with new biological technology and DNA tests, it has been argued whether there is a need to set up different criterion to such exception theory or to expand more exceptions. Still, Korean Supreme Court recently adjudicated that presumption of paternity should be maintained even if such presumption was found to be false after DNA tests, and reiterated the exception by externals theory. This article reviews the origin and relationship between the presumption of paternity clause and the denial of presumption clause, and suggests the exception theory should be overturned since the filing period for the denial of presumption has been adequately extended after the constitutional court’s decision, thus leaving no need to adopt exception theories any more. In order to protect the proper interests of the child and the biological father, however, it is imperative that the current Korean Civil Act should be revised to allow locus standi to the child and to the biological father as soon as possible.

The presumption of paternity in the Soviet law

The exploring of the legal regulation of the presumption of paternity in Soviet law is relevant because of the fact that in 2017 - 2019 the State Duma of the Russian Federation considered a bill on the return of the administrative overcoming of the presumption of paternity to the Russian Family Code in the version that was in force on the territory of the USSR from 1984 to 1991 and in the Russian Federation from 1996 to 1997. The bill was rejected, but not because society did not need to administratively overcome the presumption of paternity, but because of the human factor of the initiators of the bill, who stopped this law-making process halfway through without good reason. The article carries out a comparative legal analysis of Soviet and modern Russian legislation. In sum, the administrative overcoming of the presumption of paternity corresponds to the principle of procedural economy, protects men from unfair parenting in relation to a not own child from the moment of registration of a child to the moment of contesting paternity, prevents long-term negative communication between the mother of the child, her husband and the biological father of the child in the process of litigation to contest paternity. It is advisable to return to modern legislation the possibility of administratively overcoming the presumption of paternity by submitting an application of the child’s mother and her husband (ex-husband) to the registry office.

Gender in Law and Family Values: In Search of a Balance

The paper examines the current gender aspects of legislation regulating relations with the family element (mainly from the family legal space), the practice of its application by the courts. The provisions of the legal doctrine, primarily civil and civil procedure, on this issue are summarized and analyzed. Meanwhile, the author intentionally leaves civil law out of the field of research, since civil law norms are specified by family and administrative legislation and are gender neutral. The gender contexts of the institution of marriage (its heterosexual legal attitudes, the legal consequences of sex change in marriage, the problem of same-sex marriage, de facto marriage, gender prohibitions in the divorce procedure), the institute of parenthood (presumption of paternity, the influence of gender stereotypes on the legislation on the establishment of extramarital paternity, the law enforcement presumption of the mother’s preferential right to leave her young child, the rights of fathers, same-sex parenthood and its consequences), the institute of surrogacy (gender differentiation the subject composition of the program participants, controversial administrative and judicial practice in cases of the legal consequences of the use of assisted reproductive technologies). Other gender aspects of Russian family legislation are analyzed (for example, gender neutralization of norms on alimony obligations). In the argumentation of his position on these issues, the author not only relies on the analysis of legal norms, court decisions and provisions of legal doctrine, but also refers to the sociological meanings of gender practices. The author notes that the proposed approaches to the classical and modern gender contexts of family and related legislation indicate the actualization of both the problem as a whole and the need to answer questions on its individual components.

Pater Est Quem Nuptiae Demonstrant in Switzerland – comparative perspective

The statutory presumption of paternity of the mother’s husband causes many problems and – contrary to common belief – does not always protect the child’s best interest. The paper examines the impact of this legal principle on family life and considers its viability in today’s society. The research focuses on Swiss law but also makes references to German and Polish regulations. In a broader sense, the analysis is made from the perspective of the biological father, who is not the legal father. Based on a critical analysis, the new approaches of intentional parenthood, multiple parents and consensual change of paternity are discussed. Concluding that the mother’s marital status cannot determine the child’s affiliation, the author recommends a more flexible solution.

친생추정과 ʻ자의 복리ʼ - 대법원 2019. 10. 13. 선고 2016므2510 전원합의체 판결 -

친생추정과 ʻ자의 복리ʼ - 대법원 2019. 10. 13. 선고 2016므2510 전원합의체 판결 -

Презумпция отцовства: проблемы применения

Презумпция отцовства: проблемы применения

A Study on the Legal Principles of Presumption of Paternity

A Study on the Legal Principles of Presumption of Paternity

Legal Principle about Presumption of Paternity and Veracity of Blood Tie

Legal Principle about Presumption of Paternity and Veracity of Blood Tie

Presumption of Paternity and Its Exceptions

Presumption of Paternity and Its Exceptions

Draft Bill of the Civil Code on the Presumption of Paternity

Draft Bill of the Civil Code on the Presumption of Paternity

The Presumption of Paternity: A Revision Suggestion according to Constitutional Discordance Adjudication

The Presumption of Paternity: A Revision Suggestion according to Constitutional Discordance Adjudication

The Reevaluation of Paternity Presumptions in the Current Civil Code

The current Romanian Civil Code is characterized mainly by the fact that it is a monistic code, applicable to both civil and commercial relations, as well as to family law.The filiation towards the father (the paternity) is one of the family law institutions, which gains a new configuration within the current regulation. In this respect, this study analyzes the presumptions applicable to paternity, some of them regarding marital paternity, while others envisage extra-marital paternity.Thus, the marital paternity presumption is found in the new code in a simplified formula that unites under its legal protection both the children born in wedlock, as well as those conceived during marriage but born after the cancellation, dissolution or termination of marriage.In addition, the current code establishes a new presumption of paternity – that of the child born out of wedlock, this presumption being designed to facilitate probation for establishing the paternity of the child born out of a marital relationship.

Dual Paternity?: Reconsidering the Marital Presumption of Paternity in the New Era

Dual Paternity?: Reconsidering the Marital Presumption of Paternity in the New Era

DNA Paternity Tests: A comparative analysis of the US and Australia

There are five times as many DNA paternity tests per capita in the US than Australia. This is not a consequence of ‘technological lag’, but a combination of political, cultural and economic factors. First, government agencies in the US enforce relatively more tests, at least partly because of legislative differences in the presumption of paternity. Second, government agencies in the US enforce relatively more tests partly on account of differences in family structure. More specifically, in the US there are relatively more nonmarital births, and nonmarital births are less likely to occur in the context of informal cohabitation where paternity is not in dispute. Third, differences in industry organisation account for more DNA paternity tests per capita in the US. Unlike the Australian market, the US market is characteristically divided between tests done for government agencies and those for private individuals. In turn, the private market in the US is more competitive. In particular, brokerage is pervasive, leading to more proactive marketing through the Internet, day-time television and other avenues. The study highlights the importance of social dynamics in the uptake of new technologies.

Compulsory Ordering of Blood Tests Clarified

The applicant was seeking a declaration that the respondent was the father of her minor child. While the matter was still pending, she sought an order compelling the respondent to submit himself to a blood test to determine whether he could be excluded as the possible father. She submitted that the court's inherent jurisdiction to regulate its own procedure extended to the compulsory ordering of a blood test. The respondent contended that the court lacked the statutory power to make such an order since the Children's Status Act, 1987, section I merely created a presumption of paternity where it was proved that sexual intercourse with the mother had occurred at any time when the child could have been conceived, while section 2 provided that where a party failed to submit to a blood test in paternity proceedings it would be presumed that such refusal was aimed at concealing the truth. He also contended that if such power existed, it contravened sections 11 and 13 of the 1993 Constitution.