AG Heidelberg; 2014-07-04; 48 UR III 15/14
Decision by national courts in the field of European Union law — ECLI:DE:AGHEIDE:2014:0704.48URIII15.14.0A
Date: 2014-07-04
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82014DE0704(51)_ENG_SUMJURE
JURE summary
JURE summary
A Polish citizen residing in Germany (hereinafter ‘the plaintiff’) gave birth to a son in Heidelberg on 16 December 2013 following a final divorce from her former husband, a Polish citizen residing in Poland (hereinafter ‘the defendant’).
Although paternity was recognised by the plaintiff's new German civil partner (hereinafter ‘the civil partner’) on 14 January 2014, the Heidelberg registry office entered the defendant in the register of births on 4 February 2014 as the father of the plaintiff's son.
The plaintiff seeks the correction of the civil status data of the father of her son in the documentary part of the register of births.
The Amtsgericht Heidelberg (hereinafter ‘the Court of First Instance’) has international jurisdiction due to the involved entry into the German register of births.
The registration by the registry office in Heidelberg was incorrect and the requirements for a correction of the birth register were met. Since the child was born in Heidelberg and is resident in Neckargemünd, the parentage of the child is subject to German law in accordance with Article 19(1) first sentence EGBGB (1). The presumption of paternity under Article 1592(1) BGB (2) no longer applies because the marriage of the plaintiff and the defendant was legally dissolved before the birth of the child in Poland on 26 September 2013.
In theory, the origin of the child could also be taken into consideration under Polish law, because the plaintiff and the defendant are Polish citizens. Unlike in Germany, under the Polish Family and Guardianship Act, a child born within 300 days of the dissolution of a marriage, has, as his Father, the husband. Since the legal force of the divorce of the mother of the child occurred before the birth but within the 300-day period, the presumption of paternity of the husband would have to be assumed under Polish law.
The Court of First Instance gives priority to residence status in case of a conflict between several of the above-mentioned possibilities. This is also confirmed by several international rules, such as the Rome III Regulation (3), according to which family matters with an international element are governed primarily by the law of habitual residence.
According to the prevailing opinion, the principle of favourability should also be considered. The law applicable shall be that which is more favourable to the best interests of the child.
According to the order of the Court of First Instance, the registry office must correct the entry in the birth register and enter the civil status data of the plaintiff's partner as the father of the child.
(1) Einführungsgesetz zum Bürgerlichen Gesetzbuche vom 18. August 1896 (Introductory Statute to the Civil Code of 18 August 1896).
(2) Bürgerliches Gesetzbuch vom 18. August 1896 (German Civil Code of 18 August 1896).
(3) Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation.