Divorced and pregnant

Divorced and pregnant

"I'm getting divorced and my husband lives abroad, so we don't keep in touch. I have a new friend and I'm expecting a child. When I read a lawyer's advice in a regional newspaper, I got scared: the article said that if a child is born within 300 days of the divorce, the ex-husband is presumed to be the father. But I was sure that the legal father of my child would be my friend, and he's very sad and very angry. We've had a row and I'm distraught. What can I do?"

Sakura, Geneva

Legally, in the case of the mother, filiation results from birth. With regard to the father, it is established by his marriage to the mother or by acknowledgement, but also by judgment. It may also result from adoption.

In the version in force until 1999, the former article 255 paragraph 1 of the Civil Code provided that a child born during the marriage or within three hundred days of the dissolution of the marriage had the mother's husband as its father. However, since 1 January 2000, a new article 255 paragraph 1 of the Civil Code has been applicable, stipulating that only children born during the marriage are presumed to have the husband as their father. Under current law, there is no longer any presumption of paternity once a divorce has been granted. The lawyer's advice that you read was therefore wrong.

In 1995, the Federal Council took the view that the old divorce law no longer corresponded to the concepts of modern society, and a number of changes were made, including that of the provision that concerns you, because of the excessive number of actions for "disavowal of paternity" that it made necessary. Even then, there was a solution to your problem.

That said, a distinction must still be drawn today between divorce and the death or disappearance of the husband. In the event of the husband's death, he is deemed to be the father if the child is born either within three hundred days of the death, or after three hundred days if it is proven that the child was conceived before the husband's death. If the husband is declared absent, he is deemed to be the father of the child born within three hundred days of the danger of death or the last news.

In your case, if the child you are expecting is born after your divorce, your ex-husband will not be presumed to be the father. Your new boyfriend will then be able to recognise the child before the civil registrar, provided that there are no delays in the divorce proceedings.