Chapter 10. Filiation
Section1. Ascertainment of the father and of the mother
Paragraph 1. General provisions
Art. 738.- Legal rules mandatory.
The legal rules concerning the ascertainment of the father and of the mother may not be derogated by agreement, except in the cases where the law expressly authorizes such agreements.
Art. 739. Maternal filiation.
Art. 740. Paternal filiation.
(1) Paternal filiaiton results from the maternal filiaiton when a relation, provided for by the law, has existed between the mother and a certain man at the time of the conception or of the birth of the child.
(2) It may result from an acknowledgement of paternity made by the father of the child.
(3) It may result form a judicial declaration, in the case of abduction or rape of the mother.
Paragraph 2. Presumption of paternity.
Art. 741.- Presumption of paternity of the husband.
A child conceived or born in wedlock has the husband as father.
Art. 742.- Generality of presumption.
(1) The provisions of Art. 741 shall apply whatever the manner in which the maternal filiation of the child may have been established.
(2) They shall also apply when the record of birth of the child does not indicate the husband as being the father of the child or when it indicates that another man is the father of the child.
(3) In such cases, the record of birth shall merely be corrected.
Art. 743.- Duration of pregnancy.
(1) A child shall be deemed to have been conceived in wedlock if he is born more than 180 days after the celebration of the marriage and less than 300 days after its dissolution.
(2) No proof to the contrary shall be admitted.
Art. 744.- Absence of husband.
When the birth occurs after a judgment has declared the absence of the husband, a child shall not have the husband as father.
Art. 745.- Irregular union.
(1) A child conceived or born during an irregular union has as father the man engaged in such union.
(2) The provisions of Articles 742 and 743 concerning the generality of the presumption and the duration of pregnancy shall apply to such presumption.
Paragraph 3. Acknowledgment of paternity
Art. 746.- Principle
When the father of the child is not determined by applying the preceding Articles, the paternal filiation of the child may be established by an acknowledgment of paternity.
Art. 747.- Contents of acknowledgment.
(1) An acknowledgment of paternity shall result from the declaration made by a man that he considers himself the father of a certain child, born or merely conceived.
(2) Such declaration need not have been made with a view to producing the effects of an acknowledgment of paternity.
Art. 748.- Form and proof of acknowledgment.
(1) An acknowledgment of paternity shall be no effect unless it is made in writing.
(2) Except in the case mentioned in Art. 146 of this Code, the acknowledgment may not be proved by witnesses.
Art. 749.- Representation
(1) The declaration shall be made personally by the father of the child, even thorough he is a minor.
(2) The mandate to make it may only be given by a special power of attorney approved by the court.
(3) It may be made personally by a person subject to judicial interdiction or in his name by a legal representative, with the permission of the court.
Art. 750.- Death of father.
(1) If the father of the child is dead or not in a position of manifesting his will, the acknowledgment of paternity may be made in his name by the paternal grandfather or grandmother.
(2) In default of paternal grandparents it may be made by another paternal ascendant.
Art. 751.- Admission of the mother.
(1) The acknowledgment of paternity shall be of no effect unless it has been acknowledged to be well-founded by the mother of the child.
(2) If the mother of the child is dead or not in a position of manifesting her will, the acknowledgment of paternity may be accepted by the maternal grandfather or grandmother of the child.
(3) In default of maternal grandparents, it may be accepted by another maternal ascendant or by the guardian of the interdicted person.
Art. 752.- Majority of the child.
The acknowledgment of paternity shall be of no effect unless it has been accepted by the child himself when it is made after the later has attained majority.
Art. 753.- Form of acceptance.
The acknowledgment of paternity shall be deemed to be accepted where the person required to accept it has not raised any protest against such acknowledgment within one month after he has come to know of it.
Art. 754.- Death of child.
The acknowledgment of paternity may not be made after the death of the child unless the latter has left descendants.
Art. 755.- Revocation.
(1) The acknowledgment of paternity may not be revoked.
(2) A minor who has acknowledged a child may revoke such acknowledgement for so long as he is incapable and within the year following the cessation of his incapacity, unless his guardian consented to the acknowledgment.
(3) This right of revocation may be exercised by the minor only. It may not exercised by his legal representative nor by his heirs.
Art. 756.- Annulment.
(1) It may be annulled on the ground of violence, in accordance with the provisions of the Title of this Code relating to “Contracts in general” (Art. 1706-1709 and 1808-1818).
(2) It may not be annulled on the ground of error or fraud, in accordance with the provisions of the same Title, unless it is decisively proved that the child could not have been conceived of the person making the acknowledgment (Art. 1697-1705 and 1808-1818)
Art. 757.- Several acknowledgments prohibited.
Where an acknowledgement of paternity has been made in regard to a child and such acknowledgment has been duly accepted, no other acknowledgment of the child by another man shall be permitted unless the firs acknowledgment has been annulled.
Paragraph 4. Judicial declaration of paternity
Art. 758.- Abduction of rape.
When, after applying the preceding Articles, the child has no father, or when he has been disowned, a judicial declaration of paternity may be obtained where the mother of the child has been the victim of an abduction or of a rape at the time when the conception of the child is considered to have taken place.
Art. 759.- Brining of action.
(1) The action for a judicial declaration of paternity may be instituted only by the mother of the child or, if she is dead or not in a position to manifest her will, by the guardian of the child.
(2) It may not be instituted two years after the birth of the child or after the sentence of a criminal court in regard to the abduction or rape.
Art. 760.- Issue of the action.
The judicial declaration of paternity shall be made after the facts constituting the abduction or rape are established, unless it is decisively proved that the child has not been conceived of the man who has abducted or raped the mother.
Art. 761. No other cases.
A judicial declaration of paternity may not be demanded or made in any other case.
Section 2. Conflicts of paternity
Art. 762.- Regualtions of paternity, -1. Principle.
When, on applying the preceding Articles, a child must be attributed to several fathers, a regulation of paternity may be made between the persons to whom the paternity of the child is thus attributed by the law.
Art. 763.- 2. Form.
(1) The contract by which the regulation of paternity is made shall be attested by four witnesses and approved by the court.
(2) Except in the case of force majoure, the mother of the child shall be heard in peon.
Art. 764.- Legal presumptions.
Failing regulation of paternity, the two following presumptions shall be applied successively, where necessary:
(a) the child shall be attributed to the husband of the mother in preference to the man who has an irregular union with the mother;
(b) the child shall be attributed to the husband or the man with whom the mother is living at the time of the birth, in preference to the husband or the man with whom she was living at the time of the conception.
Art. 765.- Contractual assignment of paternity. – 1. Where permissible.
Where the child is born than 210 days after the dissolution of the marriage or the cessation of the irregular union, the husband or the man who lived with the mother may by contract assign the paternity of the child to a third person who declares that he is the father of the child.
Art. 766.- 2 Form.
(1) The contractual assignment of paternity shall be attested by four witnesses and approved by the court.
(2) Except in the case of force majeure, the mother of the chills shall be heard in person.
Art. 767.- Representation.
(1) The agreements mentioned in this Section shall be concluded by the interested parties themselves.
(2) They may not be conclude in the name of such parties by their legal representative or their heirs.
(3) A mandate to conclude them may only be given by a special power of attorney approved by the court.
Art. 768.- Revocation an annulment.
(1) The agreements mentioned in this Section may not be revoked.
(2) They may be annulled on the ground of violence in accordance with the provisions of the Title of this Code relating to “Contracts in general “Art. 1706-1709 and 1808-1818).
(3) They may not be annulled on the ground of error or fraud, in accordance with the provisions of the same Title, unless it is decisively proved that the child could not have been conceived of the person who has declared to be his father (Art. 1697-1705 and 1805-1818).
Section 3. Proof of filiation
Art. 769.- Record of birth.
Both the paternal and the maternal filiation of a person are proved by his record of birth.
Art. 770.- Possession of status. – 1. Definition.
(1) In default of a record of birth, filiation is proved by the possession of the status of child.
(2) A person has the possession of the status of child when he is treated by a man or a woman , by their relatives and by society as being the child of such man or woman.
Art. 771.- 2. Proof and contestation.
(1) Possession of status shall be proved by producing four witnesses.
(2) It may be contested by producing four witnesses.
Art. 772.- Action of child to claim his status.
In default of possession of status or where the possession of status is contested or does not correspond with the particulars in the record of birth, filiation is proved by an act of notoriety, approved by the court, upon a decision given on an action of the child to claim his status.
Art 773.- Admissibility of action.
(1) The action of the child to claim his status may not be instituted except with the permission of the court.
(2) Such permission shall not be granted unless there are presumptions or circumstantial evidence resulting form facts which are constant and sufficiently serious to enable the court to grant the permission.
Art. 774.- Admissibility of action.
No permission to institute the action to claim a status shall be granted where the person whose filiation is to be established has already another filitation resulting from his record of birth and corroborated by a possession of a status in conformity with such record.
Art. 775.- Person instituting the action.
(1) The action to claim a status may be instituted by the child, by his guardian or his heirs.
(2) It may be instituted by those who claim to be the father or mother of the child.
(3) It may also be instituted, with a view to disowning his paternity, by the person to whom the paternity of the child would be attributed, should the action be successful.
Art. 776.- Time.
(1) The child may institute the action to claim a status at any time during his life.
(2) The guardian of the child and the persons mentioned in sub-arts. (2) and (3) of Art. 775 may institute it only during the minority of the child.
(3) The heirs may not institute it unless the child died before the age of twenty years and within one year after his death.
Art. 777.- Person against whom action instituted.
(1) The action to claim a status shall be instituted against the child where the claim is made by the mother.
(2) In other cases, it shall be instituted against the mother or her heirs,
(3) The mother and the person to whom the paternity of the child will be attributed in case the action is successful must be made a party to the suit.
Section 4. Contestation of status and disowning
Paragraph 1. Contestation of status
Art. 778.- Principle.
The maternal filiation of the child may be contested at any time by any interested person.
Art. 779.- Admissibility of action.
(1) The action to contest a status may not be instituted except with the permission of the court.
(2) Such permission shall not be granted unless there are presumptions, or circumstantial evidence resulting from facts which are constant and sufficiently serious to enable the court to grant permission.
Art. 780. Inadmissibility of action.
The authorization to institute an action to contest a status shall be refused where the filiation where the fililation which the plaintiff seeks to contest result from the record of birth of the interested party and is corroborated by a possession of status corresponding with such record of birth.
Art. 781.- Defendant in the suit.
(1) The action to contest a status shall be instituted against the person whose filiation is contested or against his heirs.
(2) The mother and, where necessary, the father of the child shall be joined as parties in the proceedings.
Paragraph 2. Disowning
Art. 782.- Principle.
The paternal filiation of a child may be contested only by means of an action to disown.
Art. 783.- Where there are no relations with the mother.- 1. Principle.
The person to whom the law attributes the person to whom the law attributes the paternity of a child may disown such child by proving decisively that he could not have had sexual relations with the mother during the period included between the 300th and 180th day before the birth of the child.
Art. 784.- 2. Presumption.
(1) The spouses shall be deemed to have had no sexual relations with one another during the time when they actually lived separated following a petition for divorce made by one of them or in consequence of a written agreement concluded between them.
(2) Proof to the contrary by any means is admissible and in particular may result from mere presumptions.
Art. 785.- When paternity is impossible. – 1. Principle.
The person to whom the law attributes the paternity of a child may disown such child by proving decisively that it is absolutely impossible in the particular case that he could be the father of the child.
Art. 786.- 2. Admissibility of action.
(1) In the case mentioned in Art, 785, the action to disown may not be instituted except with the permission of the court.
(2) Such permission shall not be granted unless there are presumptions or circumstantial evidence, resulting from facts which are constant and sufficiently serious to enable the court to grant the permission.
Art. 787.- 3. Presumptions and serious circumstantial evidence.
(1) The presumptions and serious circumstantial evidence may consist of physical characteristics of the child recognized by science to be incompatible with those of the father.
(2) They may also result from the fact that the mother has concealed the birth or even merely her pregnancy to the husband or to the man with whom the lived, under circumstances which are apt to create doubts as regards his paternity.
Art. 788.- 4. Adultery or admission of the mother.
The adultery of the mother or her admission that the child has another father are not sufficient, by themselves, to constitute serious circumstantial evidence.
Art. 789.- Improbable paternity.
When the maternal filitation of the child is established by an action to claim a status, the person to whom the paternity of the child is attributed may disown the child by bringing forward any facts apt to prove that he is not the father of the child.
Art. 790.- Plaintiff in the suit.
(1) Only the person to whom the paternity of the child is attributed by the application of the legal rules may institute on action to disown.
(2) No application to this effect may be made by the mother or by a man who claims the paternity of the child or by the public prosecute or by the child himself.
Art. 791.-Judicially interdicted persons.
(1) An action to disown may, with the permission of the court, be instituted by the judicially interdicted person himself.
(2) The action may, with the same permission, be instituted in the name of the interdicted person by his guardian.
Art. 792.- Time. – 1.- Principle.
(1) An action to disown shall be instituted within the 180 days following the birth of the child.
(2) Where the maternal filiation is established by an action to claim a status, the action to disown shall be instituted within 180 das from the judgment deciding on the action to claim a status having become final.
Art. 793.- 2. Exception.
(1) Where the person to whom the paternity of the child is attributed by law dies or become incapacitated within the time fixed by law for instituting the action to disown, the right to disown the child may be exercised, in his stead; by one of his descendants.
(2) In default of descendants, it may be exercised by his father and mother or in their default by another of his ascendants.
(3) In default of ascendants, it may be exercised by one of his brothers or sisters to the exclusion of any other heir or representative.
Art. 794.- Inadmissibility of action.
Disowning shall not be allowed where it proved that the child has been conceived by means of artificial insemination with the written consent of the husband.
Art. 795.- Defendant in the suit.
(1) The action to disown shall be instituted against the child or, where he is dead, against his heirs.
(2) Where the child is a minor, he shall be represented by a tutor ad hoc appointed by the court.
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