Presumption of marital paternity – What to do when your husband from a previous marriage is registered as the child's father, and not the biological father?

Recently, a significant number of cases have appeared in Croatia where foreign citizens have problems with registering their children in the civil registry. Namely, this is a situation when foreign citizens, who are in Croatia on the basis of a residence and work permit, give birth to a child in the territory of the Republic of Croatia in a relationship with another foreign citizen, but they have not yet been divorced in their home country. Therefore, they are still actually married in their home country but that marriage in reality effectively ended years earlier but was never formally divorced due to high costs, lengthy proceedings or the inability to contact the (former) spouse.

The registration of the birth of a child in the civil registry is carried out on the basis of an application that the parents must submit no later than 30 days after the child's birth. When a child is born in a medical facility, the hospital will also notify the registry office of the birth of the child, so that the child will definitely be registered, but in order for the birth certificate to be complete and accurate, parental notification will be required.

In the case of a mother who is a foreign citizen and who has given birth to a child in a relationship with a new partner, and who is still formally married in her home country, the situation is somewhat more complicated. In such a case, the registry office will have to apply the presumption of marital paternity and register the mother's spouse as the father of the child, and not the child's actual father.

Namely, in accordance with the provisions of Art. 61 of the Family Law, the mother's husband is considered the father of the child if the child was born during the marriage or within a period of up to three hundred days after the termination of the marriage.

Furthermore, the Family Law provides for the possibility that a man who considers himself the father of a child born during the marriage or within a period of up to three hundred days after the termination of the marriage by divorce or annulment may, with the consent of the mother and the mother's husband, acknowledge the child until the child is registered in the birth register.

Therefore, it is possible, within 30 days after the birth of a child, until the child is registered in the birth registry, to recognize the child as one's own even if it was born during a previous marriage, but only if, in addition to the mother, the mother's husband also agrees to this.

The problem arises in practice because, many mothers are unable to obtain the consent of their husbands, who are either still in their common home country or even in a third country, and often the mothers cannot even get in touch with them.

In such a situation, the mother's husband is entered as the child's father in the birth register because the mother's husband's consent to the child's real father, or the mother's new partner, being entered is missing.

In this case, it is impossible for the child's mother to obtain any documents for the child, since the consent of both parents is required, and the child's father who is entered on the child's birth certificate is a person unavailable to the mother.

In order to correct the above or to bring it into line with the actual situation, it will be necessary to initiate court proceedings to contest and establish paternity. In this proceeding, the plaintiffs will be the mother and the minor child, and the defendants will be the mother's husband, or "father" registered on the basis of the presumption of marital paternity and the biological father of the child. Although these are urgent procedures in accordance with the provisions of the Family Law, such procedures will take several months and sometimes a DNA analysis will be necessary.

After the procedure is completed and a final and enforceable court decision is obtained, the competent registry office will amend the child's birth certificate and change the registration for the father.

In order to resolve this situation as quickly as possible, it is definitely recommended to involve a lawyer from the very beginning in such a situation.