The Court of First Instance was not his for more than two decades. The court rejected the request because the time limit for action had expired and there was “possession of status” on their part.
According to the judgment, the person concerned alleged that she had been in a non-marital relationship for four years with the mother of whom her son was supposed to be, who is now deceased. During that time, the lawsuit says, they never had a “life together” or shared a home.
On July 2, 1997, the woman gave birth to a child, registered in the civil registry under her last name but as a child out of wedlock. The man “always” suspected that he was not the baby’s biological father, since the mother had had sexual relations with other men during this period. He therefore requested a judgment declaring that he was not the father and the cancellation of the child’s registration in the civil registry.
Furthermore, as he stated in furtherance of his initial request, in 2017 the man had a conversation with the sister of his then partner and she told him that he was not the father of the child (although this could not be confirmed during the oral hearing). hearing) held last June). After the confession, the 80-year-old man went for a paternity test and the DNA proved him right.
The complainant assured that he had been “deceived” and that “until the age of seven”, he saw the child “once a week at daycare”, but “because he did not give him no money, the relationship broke down.”
For its part, the mother’s defense alleged that the complainant had “contributed to the maintenance of the child through alimony” and that, since there was state possession (a relationship of filiation and public treatment external father-son), the man had only four years to file his claim before the action expired, which he did not do.
“In the case of state possession, the contesting action will correspond to the person who appears as a child or parent and to those who, by reason of filiation, can be assigned as reserved heirs. The action will expire after four years from the moment when the child, once the filiation has been registered, will enjoy possession of the corresponding status,” explains the judge.
The sentence highlights that the man registered the child as his son, paid him alimony and maintained a relationship with him until he was seven years old. Even the mother had filed a judicial request for alimony, all facts which “reveal” that state possession really existed.
But the lawsuit was filed in April 2017, after the aforementioned conversation with the sister of his partner, so it is “obvious that when the contesting action was filed, it had expired”, according to the provisions of article 140 of the Civil Code.
“It is surprising”, explains the judge, that the plaintiff claims “to have always harbored suspicions of paternity” and, on the other hand, “takes action when almost 20 years have passed since the birth” of his father’s son. son. partner, especially when “the appearance of paternity has been maintained throughout.”
The plaintiff’s lawyer reported last June that the report from the National Institute of Toxicology concluded “the existence of a genetic incompatibility”, which constituted “the key evidence” of the case.
The lawyer explained that his client was convicted in 2016 by a criminal court in Almería for non-payment of pensions and was fined and ordered to pay more than 40,000 euros, for which his retirement pension ended up being seized. The lawyer hoped that the complainant would be right in order to be able to propose the cessation of the measures imposed on his client and the pension.
