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FILIATION AND MAINTENANCE LAW AFTER 2008 REFORM (Prawo filiacyjne i alimentacyjne po reformie z 2008 r.)

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Smyczynski T.

Kwartalnik Prawa Prywatnego

2010

vol. 19

issue 2

297-332

Family law in Poland is not regulated in the Civil Code but in a separate Family and Guardianship Code. In 2008, the Polish Parliament considerably reformed that Code, among other things, with respect to establishing and denying maternity and paternity as well as with respect to the parental obligation of maintenance towards a child. As regards maternity of a specific woman, there has been no legal norm so far; it was assumed that a child's mother is a woman who gave birth to the child as was concluded from the birth certificate. The filiation law reform incorporated such provisions into the Family Code that expressly regulate prerequisites and method of establishing and denying maternity. As far as filiation is concerned, the reform concerned both denial of paternity of a legitimate child and establishing paternity of an illegitimate child by voluntary declaration on being a child's father made by a man being the biological father of the child. A prerequisite for denial of paternity by a husband of the child's mother is evidencing that such husband is not the father of the child. Before the reform, the prerequisites for the effective denial of paternity depended, first of all, on the fact whether the child was born before or after 180 days after the marriage date. Since DNA testing has a significant force of evidence, the procedure of proving that a man is not the child's father can be simplified as a result of an examination performed by a professional medical institution. In addition, the reform of provisions regulating the establishment of paternity on the basis of a declaration on being a child's father made by the biological father simplified that legal solution as well. As a result, after the reform of the Family Code, a declaration made by a man that he is such child's father is not a declaration of will but a declaration of knowledge only. Thus, admitting the fact of being the child's father cannot be revoked in consequence of any occurrence of any defect of the declaration of will. Such declaration of knowledge about paternity (admitting the fact) may be ineffective only when the man making such declaration is not the biological father of the child. Maintenance law was also amended. The parental obligation of maintenance with respect to an adult child was weakened if the child does not make any efforts to earn his/her living or if the parents cannot maintain the child without suffering serious damage to their own financial situation. In such a case, the child's claim can be dismissed in part or in whole. The legislator extended on all the disabled the possibility of performing the obligation of maintenance by taking care of the eligible child and not to provide money only. This way, it is easier for the obligated person to perform such obligation if the person does not have money to do so, he/she can do it in a different manner (taking care of the child, providing food, taking care of the child when the child is ill, etc.). Another new legal solution is a dismissal of an action for maintenance on the basis of a charge that a right concerning a specific person has been abused, i.e. by stating that demanding maintenance is in conflict with principles of community life. Behaving in such reprehensible manner, the child demanding maintenance has become a person undeserving it and the child's demand breaches the issue of equity and justice.

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1 Kwartalnik Prawa Prywatnego

1 Smyczynski T.

1 2010

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FILIATION AND MAINTENANCE LAW AFTER 2008 REFORM (Prawo filiacyjne i alimentacyjne po reformie z 2008 r.)