Man loses bid to reject paternity of wife's children

The Court of Appeal yesterday revoked a judgment of the First Hall of the Civil Court in a denial of paternity suit and ruled that a legal separation between a married couple did not render it impossible for the husband to have fathered her children.

This judgment was delivered by Chief Justice Vincent Degaetano sitting with Mr Justice Anton Depasquale and Mr Justice Albert J. Magri.

The husband had sued both his wife and the Director of Public Registry saying that he and his wife had married in 1977 and had five children.

In 1989 the couple separated factually and in 1996 they separated legally by means of a public deed. However, between 1991 and 1997 the wife had three other children from two different fathers, none of whom was her husband.

The husband claimed that the birth of these three children was registered at the Public Registry and that all three were indicated as being his children.

This was not the case and at the time the three children were conceived the husband was in the physical impossibility of cohabiting with his wife due to the distance between them and also due to the fact that they had been both factually and legally separated.

The husband asked the court to declare he was not the natural father of the three children in question born to his wife and to order the Director of Public Registry to correct the children's birth certificates accordingly.

The First Hall of the Civil Court had appointed curators to represent the three children and the curators pleaded that the separation between the husband and the wife did not suffice to deprive the three children of their legitimate status.

In a judgment delivered in June 2004, the First Hall of the Civil Court had upheld the husband's writ and ordered a correction to the birth certificates of the three children in question so as to indicate that they were born to the mother and to an unknown father.

The curators representing the three children lodged an appeal to the Court of Appeal and submitted that the simple fact of a separation between a married couple did not give rise to a situation of physical impossibility to father the children as required by section 77 of the Civil Code.

This article, the Court of Appeal noted, stipulated that the filiation of children born during a marriage could be attacked by whoever had an interest if such person could prove that in the time between 300 days and 180 days before the birth of the children the husband was in the physical impossibility of cohabiting with his wife as he was absent from her.

The court quoted from previous judgments which had interpreted this article of law to mean that in order for there to be physical impossibility this had to be material and absolute and not merely moral impossibility.

The judgments interpreted the absence of the husband to indicate absence from the country but the Court of Appeal added that there could also be absence in cases where the husband was in prison or in hospital.

The 1993 amendments to the Civil Code had extended this right of the husband to deny paternity of children to cases where, in the relevant time frame, the husband and wife were factually separated from one another.

However, the amendments had only limitedly affected article 77 of the Civil Code for it had only substituted the margin note to this article.

The court added that the 1993 amendments had in no manner changed the contents of article 77.

The same amendments, the Court of Appeal said, had recognised the importance of scientific and genetic tests in the context of suits to deny paternity.

However, no amendment was made in this sense to article 77 and, furthermore, the husband in this case had not produced any scientific or genetic evidence in support of his claim that the three children in question were not his.

The Court of Appeal added that recent judgments by the First Hall of the Civil Court had interpreted "physical impossibility" in a wide and liberal manner and that this was inspired by a sense of equity and to offer a solution in the light of social changes.

However, the appellate court declared that original interpretations which departed from the Civil Code could not be allowed.

No court was at liberty to deliberate upon issues of paternity with a sense of equity or justice that exceeded the strict provisions of the law. The supreme interest of the minor demanded that the law was strictly and scrupulously applied in order to assure the certainty of civil status.

In this case, the court ruled that the de facto separation of the husband and the wife might constitute a moral impossibility to have a sexual relationship but no evidence was produced to show that it was physically impossible for the husband to cohabit with his wife.

The Court of Appeal therefore upheld the appeal filed by the curators.