What surname for my child?

What surname for my child?

"I've been going through divorce proceedings for a year now. I recently settled down with my new partner and I'm about to give birth to our child. What happens if our child is born before the divorce is final?

Maria, Geneva

Under article 255 of the Civil Code, the legal father of a child born during marriage is the husband.

However, as you explain, it can happen that a woman is expecting or has a child by her partner while she is still married. In this situation, the child's biological father cannot recognise him because, legally, the child already has a father. This paternity must therefore be challenged before a court by an action for disavowal of paternity (art. 256 CC).

This action may be brought by the husband within one year of becoming aware of the birth and of the fact that he is not the father, or by the child himself if he is capable of discernment and if the spouses ceased to live together during his minority. If the child is not capable of discernment, the guardianship authority will appoint a representative curator to bring the action. In addition, the action must be brought no later than one year after the child reaches the age of 18. It should also be noted that neither the child's mother nor the biological father can bring an action for disavowal; at most, they can report the case to the guardianship authority.

The claimant must prove that the husband is not the father. If, as in your case, the spouses were not living together when the child was conceived, the claimant can limit himself to proving this fact, as the presumption that the husband is the father is weak. Finally, when the action for disavowal is successful, paternal filiation is extinguished, as are all the effects arising from it (family name, maintenance obligation, etc.). However, this does not mean that the biological father becomes the legal father. To do so, he must acknowledge the child by a simple declaration before the civil registrar (art. 260 CC).