Paternal recognition

What are the conditions for paternal recognition on the part of the child?

Paternal recognition is only possible for children whose paternal lineage is not (or no longer) established based on the paternity rule. Recognition is also not possible if a co-maternal lineage has already been established based on the mother's marriage.

Furthermore, recognition is excluded when there is an absolute (inexempt) impediment to marriage between the legal mother and the man who wishes to recognize the child. This is the case, for example, when they are related in the direct line.

What are the conditions for paternal acknowledgment on the part of the person acknowledging the father?

A minor father can acknowledge a child without any additional conditions applying. Therefore, there are no age restrictions or extra requirements specifically linked to the fact that he is a minor.

If the person acknowledging the child is a protected person who has been declared incapable of acknowledging a child (e.g., on the grounds of judicial protection or extended minority), he may request authorization from the Justice of the Peace for this purpose.

Do you have to observe a specific time limit within which the recognition must take place?

No, there is no statutory time limit within which recognition must take place. A child can be recognized during pregnancy (prenatal recognition), provided the mother consents. On the other hand, an adult child can also be recognized, as long as no other kinship ties stand in the way and the legal conditions are met.

Formal requirements for paternal recognition

The acknowledgment must be made by means of an authentic deed drawn up by the civil registrar.

When a married man acknowledges a child conceived outside of marriage, the civil registrar is obliged to notify his spouse of the acknowledgment.

Consent of mother and/or child

Regarding the required consent for a paternal acknowledgment, three situations must be distinguished.

• Unemancipated minor child with a mentally competent mother (Article 329bis, §2 old Civil Code)

When a man wishes to acknowledge an unemancipated minor child or an unborn child, the mother's consent is required. If the child is at least twelve years old and has sufficient capacity for discernment, the child's consent is also required.

If the mother and/or the child refuse consent, the prospective acknowledger may summon them before the family court. The court will initially attempt to bring the parties to an agreement.

If the required consents are not obtained, the family court will have to make a substantive assessment. There are then two possibilities:

• If it is proven that the man is not the biological father, the court will reject the request for acknowledgment.
• If biological paternity is not ruled out, the court must grant the acknowledgment, unless the acknowledgment is manifestly contrary to the best interests of the child. 

According to the law, the family court was only permitted to conduct a marginal (minimal) assessment of the child's best interests when the child is under one year of age. However, the Constitutional Court has ruled that this limitation is contrary to the Constitution. The judge must conduct a full assessment of the child's best interests even in the case of children under one year of age. In doing so, the court must take into account not only the child's best interests but also the biological father's right to have his paternity acknowledged.

If the prospective acknowledger has committed rape against the mother, the family court must refuse acknowledgment, even if it is not proven that the genetic link is absent.

• Adult or emancipated child (Article 329bis, §1 old Civil Code)

When the child is already an adult or emancipated, only the consent of the child itself is required for acknowledgment.

In that case, the child therefore possesses an absolute veto right: it can refuse acknowledgment without justification, and that refusal is binding.

However, there are exceptions. The child's consent is not required when:

1. The child is deemed mentally incompetent by the court;
2. The child has been declared incompetent by the justice of the peace, within the framework of a protective measure, to consent to the acknowledgment.

• Unemancipated minor child, without a mother or a still living mother who is presumed absent, unable to express her will, or mentally incompetent (Article 329bis, §3 old Civil Code)

This concerns an exceptional situation in which no prior consent is required, not even from the minor child who has reached the age of twelve.

In this case, paternal acknowledgment may be made without prior consent when the mother:

1. is unknown;
2. has died;
3. is presumed absent;
4. is unable to express her will;
5. has been declared mentally incompetent.

After the acknowledgment, the civil registrar must notify both the child and the legal guardian of the acknowledgment. If they have not consented to the acknowledgment, they may file an action for annulment within a period of six months after notification. For a valid annulment, it must be proven that the person acknowledging the child is not the biological father.

However, there are exceptions; proof is not required when:

• the person acknowledging the child is the rapist of the mother;
• the acknowledgment is clearly contrary to the best interests of the child.