Paternity Fraud


Commentaries - by Pierre MURAT, Professor, Faculty of Law, Grenoble II, October 3, 2005  ( unofficial translation )


198 On the restitution of sums paid for child support: be warned of the results of contesting paternity!

The declarative effect appertaining to the judgment accepting a contestation of legitimate paternity has retroactively obviated the obligation for child support that was the burden of the first husband of the mother, inasmuch as the payments he made to provide for the needs of the child were found to be without foundation. The mother, who had always benefited from the contributions made by her first husband, and the second husband, father of the child, who benefited from the contributions made on account of the marriage, must be held to be repaid.

CA Caen, 1st chapter, section 3, 8 Jan. 2004: Juris-Data No. 2004-240963.


Deemed admissible for hearing by appellate decision of 21 November 2002, the action in contestation of paternity undertaken by the spouses L, enjoined with a request for legitimization by the child, appeared equally well-founded in light of conclusions drawn by the biological expert report of Doctor R who showed that the probability of paternity of Mr. L vis--vis Astrid G was 99.85%.

It should be noted in this respect, that Mr. G did not submit to comparative examination; that Mr. L assumed his paternity of Astrid on the basis of conclusions properly noted and filed with the trial court and court of appeal; and that the judicial expertise in substance confirmed tests undertaken by a London laboratory in 1998.

From this, it must be adjudged that Mr. G was not the father of Astrid but that the latter was the daughter of Mr. L, and that the legitimization of the child by the marriage of her parents on 25 May 1999 must be recognized with all legal consequences.

The change in the childs surname, which must conform to her true parentage, has been imposed as a consequence of the decision denying the paternity of Mr. G and finding it to be that of Mr. L.

Mr. G, who raised Astrid for many years, is to be granted rights of visitation and lodgment as deemed to conform to the interests of the child in maintaining ties to the person she considered to be her father throughout her childhood and who would stand to benefit from a like right accorded by the family court judge of the Trial Court of Cherbourg (according to the ruling of 30 September 2002).

The hearing of the minor, duly represented in the trial by an ad hoc administrator, does not rule out, in fact far to the contrary, the maintenance of such relations, is neither necessary nor opportune given that Astrid is only 11 years old, where the situation with which she is confronted is already excessively disturbing and that the matters she was able to hold before witnesses must be considered with the greatest circumspection bearing in mind the psychological pressures of which it is manifest she is the object.

To note the evolution of Astrids legal situation, the right of visitation accorded to Mr. G is henceforth to be reduced with reference to what it is currently and in line with the claims made by him before the court.

The request (a new cause of appeal) by Mr. G to recuperate sums improperly spent for the raising of Astrid over ten years is appropriate on application of Articles 564 et seq. of the New Code of Civil Procedure by which it consists of submitting to the Court a question born of the raising of a fact (the non-paternity, biologically established, of interests relating to the child) and that which accompanies it, the consequence or the complement of the claim looking to reject the action in contestation of paternity directed against him.

The declarative effect attaching to the judgment accepting a contestation of legitimate paternity deprives the child from its birth of being a legitimate child and, by consequence, retroactively obviates the obligation of child support that was borne by the husband of the mother inasmuch as the payments the latter made to provide for the needs of the child are found to be deprived of cause.

Mr. G, of whom it is not shown that he would voluntarily quit his natural obligations (knowing he is not the father of Astrid), is entitled to exercise his right of action to recover unjust enrichment under Article 1235 of the Civil Code.

This action may be undertaken either against the person that received the payment or against the person for whose account it was received.

Mrs. B (spouse L), the mother of Astrid, who always benefited from the contributions of Mr. G in the support and education of the child, and Mr. L, who is the legitimate father of the child on account of the marriage celebrated on 25 May 1999 (Article 332-1 of the Civil Code) who equally and necessarily benefited, from that date, from the contributions made, must be held to make restitution upon conditions that will be elaborated upon later.

In this regard, the following should be considered:

  • That between the birth of Astrid (2 September 1992) and the non-conciliation ruling (2 June 1997), Read More .. than four years have passed during which the appellant (whose means of contributing were inferior to those of his spouse) has contributed as normal in the cost of support for and education of the young child;
  • That the above-cited non-conciliation ruling determined the residence of Astrid to be the home of Mr. G and gave to the discretion of Mrs. B alimony payments of 1,700 Francs per month (confirmed on appeal on 28 May 1998 and upheld by the divorce judgment of 8 December 1998);
  • That, by the ruling of 30 September 2002, the family court judge of the Trial Court of Cherbourg determined the residence of Astrid to be that of her mother and allocated to the discretion of Mr. G alimony payments of 122 Euros per month;
  • That Mr. G presents a contract request on the basis of 2,000 Francs or 304.30 Euros per month over ten years.

Taking these elements into account, the Court estimates the total sum of which Mrs. B is the debtor to be fixed at 10,000 Euros and the total amount that is jointly owed by the spouses L to be estimated at 5,000 Euros.

The request for damages-interest, new as a cause of appeal, from Mr. G is admissible for the same reasons as those based on the claim for recovery of the undue amount.

The moral and psychological prejudice claimed by Mr. G, who sees himself as deprived of his paternity of Astrid, by virtue of which he developed a fabric of special ties with the child over many years, is very important.

The fault committed by Mrs. L (who maintained an extra-marital affair by which Astrid was born and did not reveal this to Mr. G), no less than the doubts she maintained with respect to the true parentage of the child, before 1990 and that committed by Mr. L (who belatedly recognized Astrid as his child affirming it in his writ of 9 January 1998 before the Trial Court of Cherbourg, saw his child regularly from her birth), are characterized and generalized causes of this prejudice.

The spouses L are henceforth found liable in solidum to payment of the sum of 8,000 Euros under title of damages-interest.

NOTE: On a first reading the appellate decision does no more than illustrate the well-known consequences of the contestation of paternity: that for the man who raised the child to continue maintaining his ties to the latter by means of a grant under law of visitation (V.C. civ., art. 311-3); thatwhich in the end is somewhat contradictory to the mission of the preceding prerogativeto obtaining reimbursement of monies committed to the education of the child.

The decisions are sometimes obscure or confused on the exact basis of reimbursement: as the authors write, the Supreme Court qualifies this action of in rem verso although it is exercised against the new father, it seems to concern a reimbursement of undue gains although it is exercised against the mother; the tribunals seem hardly to pay attention to the qualification (Ph. Malaurie et H. Pulchiron, Droit Civil, La Famille: Defrnois, 2004, No. 959). From this angle, the appellate decision of the Court of Caen does not avoid criticism and finally makes clear the awkwardness that continues to surround the qualification.

While the appellate decision recalls that: the declarative effect attaching to the judgment accepting a contestation of legitimate paternity [] retroactively obviates the obligation for support that was borne by the husband of the mother inasmuch as the payments that he made to provide for the needs of the child are found to be deprived of cause, it reverses almost word for word the expectations of the Supreme Court that consecrated the undue enrichment as founded in the action undertaken against the new father (Cass. 1 Feb 1984 ; D. 1984, p. 388, note J. Massip; D. 1984, inf. Rap. p. 315, obs. D. Huet-Weiller; RTD civ. 1984, p. 700, obs. J. Rubellin-Devichi). But it is as much in the lines following that give to the cause of action exercised the foundation of the recovery of undue gains! Without doubt the Court was annoyed by the fact that the action was aimed at the time against the mother and against the second husband, the father of the child. Maybe the action should have been first an undertaking against the mother on the ground of recovery of illicit gains, and subsidiarily against the father, in the case of unresolvability, on the grounds of undue enrichment (in this vein, P. Guiho, J.-Cl. Droit de lenfant, Fasc. 260 or Civil Code, Art. 312 to 318-2, Fasc. 20, No. 105 or Notarial Rpertoire, V. Filiation, Fasc. 22). The solution is however quite complex and one author defended the reverse point of view with convincing arguments: the obligation of maintenance that weighs on the father is equal, but distinct from that which weighs on the mother; while she is found liable, as the accipiens of bad faith, to payment of the undue gains, one supposes that the debt was paid between these hands and can also claim that the presumed father directly accomplished the obligation that was incumbent upon the true father, the mother in the two cases having provided for her part for the needs of the child (J. Rubellin-Devichi, obs. prc., p. 702).

Besides the problem of the foundation of the cause of action, the question of the where the obligations start for the new father, upon which he would condition the extent of his liability. After having remarked that the second husband was not the legitimate father of the child except on account of the marriage and that he had benefited from that date from the contributions of the former husband in the maintenance of the child, the decision distinguishing between the situation of the mother and that of the new father in finding the first only liable for a part of the sums and the two spouses together for another part. Is it not however necessary to overlook the declarative effect of establishing the parentage of which the appellate decision of the Supreme Court of 1984 nonetheless took particular note of the critical role it played? We refer back to one of the commentators of that decision in making the following valuable remarks: The difficulty that the appeal has used in the payments made by the first husband was under the title of his contribution to the support of that child that at that time he believed to be his own; there was therefore a cause for [unjust] enrichment. But in reality, under the action for legitimization which takes effect from the date of the marriage (C. civ. 332-1) or to that of the judgment pronouncing legitimization by authority of justice (C. civ. Art. 333-4), the judgments confirming the paternity or absence of paternity (as in the case of disallowance or annulment of recognition) are declarative of a pre-existing state, as much as voluntary recognitions (J. Rubellin-Devichi, obs. prc. p. 701). In the instant case judged by the Caen Court of Appeal, it appears that the paternity action might be founded on Article 318 of the Civil Code (the appellate decision raises a contest of legitimate paternity with the ends of legitimization); the question is ultimately then to understand if the subsequent decision to this action benefited in some way from a double-retroactivity that, on the one hand, vanquished the first paternity for, on the other hand, to substitute it ab initio with the paternity of the second husband, or if, as the legitimization under Article 318 may reconcile (V. C. civ., art. 318-1 and 318-2), the paternity of the second husband does not take effect until the date of the marriage. The Court was leaning toward the legitimization process (C. civ., art. 332-1) and did not fully consider the obligations of the second father except on account of the marriage. It is the reverse resolution that should prevail. This is first because the spirit of Article 318 is to indissolubly link the contestation of paternity of the first husband to the recognition of paternity by the second in order that the child might not suffer disruption in the links to paternity; next because the Supreme Court ruled on the underlying appellate decision given in 1984 in finding the second husband liable following a modification of parenthood to the child justly obtained under Article 318 As one author wrote regarding the consequences of the action founded on Article 318: This is a declarative judgment of paternity, as it confirms the paternity with regard to the second husband, and the absence of paternity with regard to the first. But, under the general rule, judgments that confirm paternity or its absence are considered to be retroactive; their effect relates back to the birth of the child (P. Guiho, art. Prc. No. 104). In the present case, the second husband would therefore have to be recognized as owing an obligation of support to the child from the time of its birth and not since the time of his marriage to the mother of the child, as the Court of Caen would have it.

Key-Words: Legitimate paternity Contestation of paternity Parental obligations of support Restitution of unjust enrichment.

Juris-Classeur; Droit de lenfant, Pasc. 260 or Civil Code, Art. 312 to 318-2, fasc. 20, No. 105 or Notarial Rpertoire, V. Filiation, fasc. 22.

[1] NB: I have translated the filiation throughout this article as paternity given the context of the article although it more properly means relation.

This is a legal citation to the Caen Court of Appeals decisions. Later citations follow a similar format.

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