Article 1546: Child born outside marriage

Décisions de la Cour suprême interprétant cette section

1. Arrêt de la Cour suprême n° 3780/2543 (2000)

   A child born to a woman not married to the man is the legitimate child of the mother alone under section 1546, so sole parental power rests with her under section 1566 paragraph 1. A father who has not legitimated the child is not a father within section 1566, so an agreement between the parents that the child live with him takes effect neither as a parental agreement under section 1566 paragraph 2(6) nor as any right to fix the child residence under section 1567(1). The mother may withdraw from such an arrangement and demand the child back under section 1567(4), as from any other person holding the child unlawfully.

   The parents lived together without registering a marriage and had a son in 1995. When they separated in 1998 they agreed the boy would stay with the father from Monday to Friday and with the mother at weekends. The mother later sued to have him returned. The Supreme Court held the boy is the legitimate child of the mother alone under section 1546, so parental power rests with her alone under section 1566 paragraph 1; the father, not being a father within that section, gained nothing from the agreement, which could not operate under section 1566 paragraph 2(6), and had no right to fix the child residence under section 1567(1). The mother could therefore demand the child back under section 1567(4). The Court added that the father allegation of bad faith was pleaded only as a defence and not as a counterclaim satisfying Civil Procedure Code section 172 paragraph 2, and that by not objecting when evidence was dispensed with he had abandoned it.

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