According to current regulations, if a child is born during the marriage or before three hundred days after its termination or annulment, it is presumed to be from the mother's husband. Therefore, if a situation arises in which the spouses, despite their separation, do not decide to divorce, while the wife, becomes pregnant with a new partner, then it is not he, but the previous husband of the mother, who will be, in the eyes of the law, the father of the newborn child. In this case, the mother's husband, in order to regulate the legal and factual situation, should sue the court to deny paternity. The mother's husband may bring an action for the denial of paternity within six months from the date on which he learned of his wife's birth, but no later than the child's coming of age.
If, on the other hand, the child was born before the expiration of three hundred days after the cessation or annulment of the marriage, but after the mother entered into a second marriage, the child is presumed to be from the second husband. Again, this presumption can only be rebutted by an action to deny paternity.
If the plaintiff is the husband of the mother, then he should proceed against the child and the mother, and if the mother is dead - against the child. The mother of the child also has the legitimacy to bring an action. The mother can bring an action to deny the paternity of her husband within six months of the birth of the child. She should direct it against her husband and the child, and if the husband is dead - only against the child.
Once the child reaches the age of majority, he too will have standing to bring an action, but no later than three years after reaching that age. The child should bring an action against his mother's husband and mother, and if the mother is dead - against her husband. If the mother's husband is dead, the action should be brought against the guardian appointed by the guardianship court.
Paternity is denied by proving that the mother's husband is not the child's father. The most effective method of proving the claims we raise is through DNA testing. However, if the mother's husband refuses, without good reason, to submit to DNA testing and this evidence, as far as the parties to the trial are concerned, cannot be carried out for this reason, then, according to the position of the Supreme Court, it is permissible to rebut the presumption of paternity of the mother's husband with all other evidence showing the unlikelihood of his paternity, including evidence showing that the paternity of another man is reasonably certain.
In particular, in such a situation, it is possible to admit evidence from a group DNA test of the mother, the child and the alleged father of the child, if he agrees to it. The result of such a test, indicating with a probability that is practically certain that this man is the child's father, makes it possible to consider that the paternity of the mother's husband has been proven to be unlikely (Supreme Court ruling of October 13, 2005, ref. IV CK 169/05).
Considering the number of couples who, in the modern era, are forced to use the benefits of medicine when trying to have offspring, it is worth adding that the denial of paternity is not permitted if the child was born following a medically assisted procreation procedure to which the mother's husband consented. Such a construction of the legislation, although it represents a departure from the primacy of the principle of objective truth, is dictated by the will of the legislator to protect the institution of the family and is certainly for the benefit of the child. In this type of situation, the demand for the denial of paternity appears to be inadmissible due to its contradiction with the principles of social intercourse, which leads to the dismissal of the action.
