Proposition 51K0597

Projet de loi modifiant des dispositions du Code civil relatives à l'établissement de la filiation et aux effets de celle-ci.

General information ¶

Authors

PS | SP Valérie Déom, Thierry Giet, Karine Lalieux, André Perpète, Annick Saudoyer

Submission date

Dec. 17, 2003

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

descendant

Contact form ¶

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Discussion ¶

Oct. 20, 2005 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, in consultation with colleagues Taelman and Marghem, we have decided to refer to the written report because we have submitted a comprehensive report to the Justice Committee from the Family Law Subcommittee and because it is a very technical matter. That is why we refer to the report.

I thank you. No one has registered from your group. You will be the first to speak on behalf of your group.

The CD&V group will abstain at the vote on the bill. The Subcommittee on Family Law and then the Committee on Justice have worked very long on the reform of the law of descent. A number of very positive steps have been taken as our descent law was last thoroughly amended in 1987. The Aribtrage Court has since issued several judgments concluding discrimination between men and women. On the other hand, the court itself has partially returned to previously defended views, namely with regard to the paternal recognition of a child.

Today’s legislation eliminates discrimination. Where in the past the man who wanted to acknowledge a child needed the consent of the child’s mother while a woman who wanted to acknowledge a child did not need the consent of the father, the proposal provides that now in both cases the consent of the parent in respect of whom the descent of the minor child is established is required. Equal rules are also introduced for the judicial determination of paternity or maternity.

However, the proposal has not been limited to the mere elimination of discrimination and also introduces further changes in the law of descent. There is a derogation from the paternity system, namely the presumption that the child has the spouse as the father during the marriage or within 300 days after its dissolution or annulment. In those cases, when the descent is unlikely is deviated from the paternity scheme. Indeed, it is no longer from this time that when a spouse is involved in a long-term divorce procedure and the mother likes a child of her new partner, her former spouse is still considered the father of the child and therefore a procedure for challenging paternity needs to be established.

Furthermore, according to the judgment of the Court of Arbitration of 2003 on the recognition of a child, consideration is attached not only to whether or not the person wishing to recognise a child is the biological agent of the child, but also to whether or not such recognition would be in the best interests of the child. In addition to the biological reality, the socio-affective links are also taken into account. CD&V supports these changes.

However, our group does not consider that when paternity is established as a result of the legal presumption of paternity or as a result of a recognition, this established paternity can be challenged by any person claiming the paternity of the child.

This possibility should, in our opinion, be limited to the mother, the legal father and the child. An expansion of that possibility opens the door for abuse. Anyone who, for whatever reason, wishes to cause the mother or legal father of the child, would be able to establish a procedure for disputing paternity. This can and should not be the intention. Even though the claim is subsequently not justified, the evil has, in our opinion, already occurred.

We are not the only ones who have given that opinion. During the hearings in the Family Law Subcommittee, professors also expressed concerns about an extended right of dispute. Even the Court of Arbitration has repeatedly stated that the biological father is not discriminated by not being able to challenge the fatherhood of the spouse of the mother. The Court rightly considers that the peace of the families, the peace of the family, must be protected. We must be aware that we may even introduce a discrimination by making the fatherhood of the spouse also challenging by third parties. Inequal cases should not be treated equally.

Furthermore, we consider that the Committee on Justice made a wrong choice by not deciding to develop a comprehensive transitional arrangement or to have it developed in intensive cooperation with one or two experts on the subject. The introduction of the descent law in 1987 also rightly paid much attention to the transitional arrangement. The way in which it has now been done, namely by six independent experts to ask for a written suggestion, has not proved fruitful, and the majority therefore have not even formulated a suggestion, while a proper transitional arrangement in the matter is just essential.

Finally, our group regrets that the commissioners did not want to take advantage of the opportunity to also introduce the possibility for unmarried parents to recognise their deceased child. It is inhumane and especially shocking for unmarried parents who lose their newborn child, that the father cannot even recognize this child. I think this is a pretty missed opportunity. Paars keeps that shaking state going on. We will therefore remember.

Mr. Speaker, dear colleagues, it became urgent to revise our Civil Code so that the various forms of discrimination highlighted repeatedly by the Arbitration Court could be revised. In addition, several proposals on this subject, quite varied, had been submitted. The text proposes a clearly necessary reform that we mostly support.

The subcommittee "Family" had also decided to look at the broadest bill, the one that was not limited to removing discrimination but that considered, in addition to removing those discriminations that could still exist between fathers and mothers, men and women, to bring childhood in marriage and that outside marriage closer. The proposal submitted to us thus tends to blur the differences between the presumption of the fatherhood of the husband and the recognition.

This proposal is important in that it clearly raises the question of the foundation of filiation. Never in the ages and in any society has the mere biological fact been considered sufficient. In fact, filiation has never been a completely private affair. The law had to intervene, has intervened and continues to intervene. But everything is a matter of balance. In 1987, what we wanted to do was to establish a subtle balance, not always easy to ⁇ , even often difficult to ⁇ , between the biological link and the socio-affective and educational links. In fact, the biological link is very important, but the socio-affective and educational links are also. This balance was repeatedly challenged by the Arbitration Court when the latter broke certain points of legislation by considering them to be discriminatory.

We therefore find it important to proceed with this comprehensive reform of the right of filiation and to tend towards this balance between respect for the bond of blood and respect for the affective bond. One element of appreciation remains, of course, the preservation of family stability, in the best interest of the child, an interest that must guide all our actions.

At the beginning, a first text was presented to us. He reiterated all the proposals and went a little further. We believe that this text went too far by restricting the presumption of paternity too strongly: it limited the presumption of paternity to the child born in marriage and did not maintain this presumption either after divorce or after death — this was the famous discussion on Article 315 — it uniformized the two regimes of actions, inside and outside marriage, and it opened the action in contesting the presumption of paternity of the husband to any interested party, like the contestation of the act of recognition.

I would like to have confirmation from my colleagues regarding this article 330 new mouth. Initially, this action was open to all interested parties and now it is open to the person who claims the paternity or maternity of the child. So it is a very particular interested party and we think it is good to open an action in favor of that person, who is not anyone since it is the person who claims paternity.

Any contestation of the presumption of paternity of the legal father — it must be admitted that it is often the fathers — must be accompanied by a procedure of recognition, in order to be able to determine whether the person actually has this connection with the child, whether it is the mother or the father. Thus, it is no longer a question of “all interested”, but rather of those persons who demonstrate that it is important to break this presumption of paternity or maternity (paternity in the case of the example I took) and who claim, themselves, this link of biological filiation with the child. by

The fact that the possibility of introducing actions was restricted to those mainly concerned persons (the mother, the child and the legal father who has benefited from the presumption of paternity), while extending it to that person who is the biological parent of the child, seems to me positive, especially since it was specified that that person claimed that connection with the child.

The presumption of paternity still makes sense today. Indeed, there is still a justification for not having the same ways of establishing filiation in and out of marriage. They must, of course, be made as parallel and similar as possible, but they remain effectively different.

As some professors have said during the hearings, one can indeed conceive that a person—in this case, a man—who chooses to marry, in some way makes an early recognition. No country has eliminated the presumption of paternity. Thus it did not seem consistent to reverse — as the article 5 slightly does — the general rule and to make the regime of recognition the "quod plerumque fit", indicating that the presumption of paternity has the same effects as a recognition. Indeed, the presumption of paternity remains, in our opinion, the general rule: most children are still born within these families.

In an ideal text, we would have preferred that the grounds for challenging this presumption of paternity (for example, different homes) be grounds for challenging rather than elements that prevent the existence of the presumption. The difference is small; it all depends on how you approach the dossier and the theme. by

We are delighted to have been heard on certain points of the text, which has been able to make this text more reasonable and better with regard to us. We approve, for example, the alignment of the conditions of maternal and paternal recognition, the opening of the possibility for the father to recognize a child when this recognition would make apparent, between the father and the mother, an obstacle to marriage. To clarify how the notification of a dispatch conforming to the acts of recognition is made, to align the conditions of actions in the search of paternity and maternity, to abolish the three-year deadline to which is subject the action in the claim of a maintenance pension attempted by a child against his father, to abolish the restrictions on the rights of the adulterous child, to shorten the time limit for prescription of actions in matters of filiation, all these points are eminently positive. However, there are others that do not allow us to be fully satisfied.

First, the new Article 316 and Article 330 of the Civil Code, if they are not really contradictory, concern two situations that could be considered as different. Indeed, the assumptions referred to in Article 316, according to which the presumption of paternity is not applicable, and those referred to in Article 330, which relate to the contestation of the presumption of paternity, overlap; they are almost entirely identical. by

Therefore, identical elements may stop the presumption and, at the same time, constitute a motive for contest. Was it necessary to include them in two articles? Could it not have been possible to limit ourselves, as we have proposed, to make them motifs of contestation or motifs that do not make the presumption run? Sure, the difference in approach is quite tender, but it is real. The risk — I repeat — is the overlap of criteria. by

Another point also does not satisfy us fully. It is the registration in the population register at different addresses. It should not be considered as a sufficient element for not applying the presumption of paternity, but as a sufficient element for challenging that presumption. This is also a minimal approach difference. by

In addition, I often spoke in committee on the question of the pivot age of the child fixed at one year, which I do not understand. Recognition made before the age of one year shall be considered, in an unwavering manner, in accordance with the best interests of the child. This is no longer the case once that period has expired. In my opinion, this distinction made according to the age of the child is controversial. Indeed, it can reasonably be estimated that an action for the recognition of paternity made immediately after the birth of the child is justified. It is true that such action must be done in the best interest of the child. by

When an action for recognition is brought 364 days after the birth of the child, it is considered that it is in the interest of the child, and regardless of the person who recognizes, regardless of the situation of the child. But when the same action is introduced on the 365th day of the child’s life, it is considered that this is no longer the case. Why this difference?

For our part, it would have been better to maintain the assessment of the best interests of the child regardless of the child’s age, especially since such recognition must be declared unfounded if it is manifestly contrary to the best interests of the child. The judgment of the judge is marginal. It would have been better to leave this assessment "in view of the child's interest", especially since it is marginal. Professor Swennen had also emphasized in these remarks that the pivotal element that constitutes the age of one year of the child might be considered as discrimination. The best interests of the child are not taken into account when the child is less than one year old, as recommended by Article 3 of the European Convention on the Rights of the Child.

The text provides that if a public action is brought against the candidate for the recognition of the rapist committed against the person of the mother – this is a topic on which I have also intervened many times – the recognition can not take place and the one-year period that is planned is suspended until the public action is drowned in force of thing judged. This is an amendment that was submitted quite late in the discussion. by

We believe that when a person wants to recognize a child and at the same time an action of the rapist committed against the mother of that child is initiated, it is quite reasonable to “suspend” the procedure. However, a problem arises if the public action is initiated by the rapist committed not against the child’s mother but against the child himself, a child who will be recognized. In this case, the action is not suspended; it is not placed between parentheses as it is if the acts of rape concern the mother.

We would have preferred to harmonize the two systems and that at least this procedure be suspended, of course, in case of relationship problems — and what relationship problems, given that it is a public action initiated in the rapist — concerning the mother and father, but also when it comes to similar problems relating to the child. That would have seemed much more logical.

Finally, we find it important to maintain the current situation in which only a 15-year-old minor is considered capable of giving consent to an act as important as recognition, while the recommended age in this bill is 12 years. by

Ms. Van der Auwera spoke of certain transitional measures that were not adopted, but which we would have favored, or even included in this text in order to establish the greatest possible legal certainty.

As you can see, we have some reluctance. At the same time, we can emphasize that this text has evolved a lot, that it has been enormously discussed in committee. Ultimately, most of the progress is going in the right direction. Indeed, despite our reservations, despite our preferences for a text that would have been further, despite the rejection of some of our amendments in committee, we must today give a signal, because many discriminations have been erased and many provisions are positive. by

That is why, overall, we will vote for this text.

Mr. Speaker, Mrs. Minister, colleagues, today we are – finally, I would say – confronted with the first realization of the Family Law Subcommittee.

As you all know, the subcommittee was set up to give Parliament the necessary attention to civil law, and in particular family law, which it really needs. After all, the time that Napoleon circulated in our regions has long passed. Especially in recent decades, our society has evolved rapidly in terms of family relationships.

Mr. Speaker, when we started our work at the end of 2003, we were convinced that removing some of the discriminations established by the Court of Arbitration in the law of descent would be an easy start. We would get the way of working simple and find each other in a file that could be handled quickly and where not too many difficulties could be expected. What an illusion!

It quickly turned out that the entire descent right was subject to adjustment. While it is a very technical issue, we must not forget that the present proposal directly interferes with the daily lives of many thousands of citizens.

Mr. Wathelet, we have held heroic discussions, both about the powers of the civil servant and, more principally, about the direction we wanted to go with biological descent and descent within marriage. Reaching a compromise in a matter that is at the same time legally very heavy and very emotional, in fact, proved no sinecure.

What was the most important thing in the debate for VLD?

First of all, we have always kept the importance of the child in mind. This is reflected, for example, in the fact that we insisted on taking into account the child’s opinion as soon as it reached the age of twelve.

In this regard, we also wanted to bring some coherence and consistency into the Civil Code by aligning the provisions on age with the adoption regime. This was the basis for the amendments we submitted on this subject. We are pleased that the committee has followed us in this.

Another important guide was the biological reality. If reforms were to come, the law of descent would have to attach even greater importance to the biological reality. This is, of course, related to the notion of “interest of the child”. After all, we believe that the best interests of the child are most respected if the child, as far as possible, is in relationship with his biological parents. This cannot, of course, be fully understood, since, of course, there are always situations imaginable in which this relationship is not desirable.

The attention to biological reality is expressed, among other things, in the limitation of the presumption of paternity. In this regard, the original bill was, by the way, somewhat softened. Currently, a child born during a marriage or within 300 days of its dissolution always has a father, especially the husband of the mother. For our right, it does not matter whether he is the real father, which, Mr. Speaker, according to studies, by the way, very often would not be the case.

The proposal provided that the presumption of paternity would be limited to only the children born during the marriage itself. It is somewhere understandable that one wishes to limit the presumption of paternity to the end of the marriage, since in many cases it is unlikely that a child will be conceived during the last months of a marriage. However, there are cases in practice where this is the case. It would, of course, also cause the necessary problems in the case of the husband’s death during pregnancy.

Therefore, we choose to apply the presumption of paternity. However, there is a big problem with actual divorces. It often takes years before a couple is officially separated from the real. More and more happens that the woman now has a new partner and has a child with him. When the proud father goes to declare son or daughter at the town hall, it turns out that the husband of the mother is still the legal father.

In order to avoid such emotional dramas and a costly procedure of denial of paternity, we fully support the new regime that sets the period of 300 days from the actual separation and no longer from the official dissolution of the marriage. We also find ourselves fully in the reform which consists in declaring the presumption of paternity not applicable in a number of cases where paternity must now be challenged, which is not possible if the child has state possession in respect of both counterparts. Consequently, the biological father who wishes to recognize his child must not first challenge the presumption of paternity. In cases where a contestation of paternity is still necessary, the rules shall be aligned with the contestation of recognition.

Another important principle for the VLD, Mr. President, – I see unfortunately but one of my male colleagues is sitting here – is the equality of male and female. I remember a colleague who was deeply concerned with women’s rights once said, “If a man ever gets discriminated, then I stand on the barricades.”

We have tried to eliminate a discrimination against men in descent. It is about making it easier for the biological father to have his paternity established. These cases are regular in practice and are often striking. After all, a mother must, rightly, give consent for the recognition of her child, but it often happens that the mother has already formed a new family and wants to let her new partner as the father of her child go through life. He refuses to give permission. If the biological father can already confirm his fatherhood, it sometimes takes years. The relationship between the biological father and the child is sometimes irreparably damaged. As a result, the judge will often establish that there is possession of the state in relation to the other man and the real father can never recognize his child or, vice versa, the child will never know his or her real father. Therefore, we can find ourselves in the fact that in the absence of the consent of the mother, in children under one year only the biological reality will pass through the procedure. Consequently, recognition may only be refused in those cases if the recognitor is clearly not the biological father. Only if the biological father is late — the compromise was a year — acts, the court can take into account other elements.

Colleagues, although I only wanted to explain the elements that are important to our group, and not to resume the technical discussion, it turns out that it is not possible to talk about this matter without falling into a technical discourse. However, I think we have made clear where the weight points lie for us. Of course, the proposal changes several other points, some of which are more supported by us than others, but we think we can vote on a fairly balanced text here.

Given the many excellent opinions of various professors, to whom we obviously owe our thanks, I hope that, even after hundreds of amendments and attempts to compromise, the text is also juridically-technically correct, so that we do not again face a set of decisions of the Arbitration Court, where it actually all had begun, although I make myself honestly little illusions about it.

After all, the professors often disagreed and did not always give similar opinions. Nevertheless, I am convinced that the text we will adopt today is an improvement and a solution to the problems that many people face today. The VLD will approve the proposal.

Finally, I hope, and I look at the chairman of the subcommittee, that we will soon reach outcomes in relation to the right of access and, above all, in respect of its compliance. This is a pressing problem. After that, we could then move on to what for the VLD should be the queen in the subcommittee Family Law, in particular the reform of the divorce law.

Mr. Speaker, Mrs. Minister, dear colleagues, I am ⁇ pleased to intervene on the bill, which we are discussing today in the plenary session. It is, in fact, the first fruit of the subcommittee “Family Law”. It is undoubtedly a significant step forward in the field of the right of filiation. The subject is complex, very technical but also has a significant human and symbolic value.

As De Gavre pointed out, “The filiation has always been a mystery, since it derives, in its biological dimension, from that eminently fugitive and secret moment that is conception.” But beyond this mystery, the debate is important and necessary. We have witnessed, indeed, for a certain number of years, a sociological evolution of the family, not to mention families. This evolution is probably due, in particular, to the emergence of values of freedom, equality, autonomy, but also of responsibility in the destiny of the couple’s relationship.

The findings are here: three divorces for four marriages. Over 40% of children are born outside of marriage. Faced with this finding, the role of the legislator is not to position itself as an objector of conscience. It is not to judge good or evil, to prefer one model of couple over another, an ideal of family. The legislator must, on the contrary, accompany this social evolution by ⁇ ining a balance between the interests of each man, woman, father, mother, but also and above all of the weakest part, namely the child. I am convinced that this is what inspired the reflection and allowed us to reach the text that is presented to you today.

Before entering into the short commentary on the device, which has already been widely commented by colleagues, I would like to issue two brief considerations. I would like to remind myself first of all that the text submitted to our discussion today has its origin in a bill submitted by my group leader Thierry Giet, myself and other colleagues. This text has, of course, been adapted to the recent developments in the jurisprudence of the Arbitration Court and has also evolved through the fruitful discussions in the subcommittee "Family Law".

In this regard, I would like to praise the work done by the subcommittee and the rigour it has shown. It has chosen to prefer a thorough analysis at the expense, some will say, of a certain speed. We have realized, majority and opposition - this has already been stressed - a real work of reflection on a subject as sensitive and as arduous as is filiation, even though the ideal is obviously not of this world.

I will also recall that this matter of filiation is probably that, within civil law, which has been the subject of the largest number of decisions of the Arbitration Court, a significant part of which found the existence of discriminations in our legislation of 31 March 1987. Note also that the first arrests date from the early 1990s and that we are in 2005. More precisely, this 1987 legislation itself was drawing the consequences of the fatal but, in my sense, necessary blow, given to our system by the most famous Marx decision. I will not extend further on the philosophy which prevailed at the time and which favoured the legitimate family and therefore the legitimate filiation, namely that of the children of a married couple. Any other filiation was prohibited by law, which resulted in very strict texts against children born outside marriage. Certainly, the law of March 31, 1987 proclaimed the equality of children, regardless of the mode of establishment of the filiation and removed terms as ingrate as "legitimate", "adulterous" or even "natural".

It must however be observed that the proclaimed equality exists only at the level of the effects of the filiation and not of its establishment. There is indeed a very clear difference between maternity, placed under the banner of the adage "mater semper certa est", and paternity, the establishment of which is subjected outside of marriage to significant obstacles and certain discriminations, which are also highlighted by the Court of Arbitration. To answer this, and my colleagues have already referred to it, we propose to uniformise the procedures of recognition, both maternal and paternal, by requiring in the case of a minor child not emancipated the consent of that of its authors in respect of whom the filiation is established.

Furthermore, in order to balance the interests of parents and children, it is proposed, in the absence of consent, to modalize the court’s timely review according to the age of the child. Indeed, if recognition is immediate, it is suggested to allow it if it is consistent with the biological truth. On the other hand, if recognition is delayed, i.e. if the child is one year or older, a review of the judge’s opportunity in relation to the child’s best interests seems to be justified. There will be a long discussion about the deadline. A deadline is a deadline: 365 days instead of 364, 300 days after the dissolution of the marriage instead of 299, one can also ask questions. If this recognition is late, then there is an opportunity check.

The provision is objectively justified and this one-year period seems quite reasonable. Indeed, it is necessary to act here with caution, keeping in mind that this matter affects the privacy of persons.

I would like to comment on the one-year deadline.

I acknowledge that a deadline remains a deadline: one year, two years; we have talked a lot about it. However, I regret that the criterion is the age of the child. In my opinion, this is not the best criterion. Sometimes people are informed of their paternity only late, because they have been hidden from them, for example. In my opinion, the important criterion — I have also advocated for this criterion in committee — was the knowledge of the new state, because one can be father or mother — note that usually, the mother is aware; it is better. As soon as I got acquainted, I preferred the period of one year.

We will not resume the debate here but, as part of a late recognition, the judge will assess in the best interests of the child. Taking the child’s age as a reference criterion, while the judge positions itself in the child’s best interest, therefore did not seem completely unreasonable.

More fundamentally, the proposal is fully in line with the social evolution to which I already referred at the beginning of my speech. From then on, it appeared to us necessary to limit the scope of the famous presumption of paternity which is, let us recall, a pure legal fiction. I can’t resist the pleasure of reading the article that establishes this presumption of paternity. “The child born during the marriage or within 300 days following the dissolution or annulment of the marriage shall be the father of the husband.”

Dear spouses, dear wives, you who have flowed happy days during your marriage but who, for reasons x or y, life separates, to your calculations. If you are lucky enough to rebuild your life and be able to re-conceive this magnificent project of a child, calculate well that it is not born within 300 days after your divorce or you will face costly and sometimes painful legal steps to make recognition, by law, the true paternity of your child. We are far from this fabulous mystery of design. Shocking situations and mini-dramas of arithmetics that civil status officers can witness, those who are in the front line of birth declarations.

As we can see, this provision was no longer in conformity with today’s social reality. This is why the proposed text specifies that the presumption of paternity will no longer apply if the spouses, for example in a divorce proceedings, have separate residences. This mitigates the effects of a provision that appears more and more over the years even if it is true that we wanted to go further and have a clear provision.

The proposal tends to maintain this precarious balance between biological truth and family peace, without falling into hypocrisy or legal excess. It will also be a balance to be found in practice. It is this same balance and this same perspective that have pushed us to propose the possibility for the biological father to challenge the paternity of another father. I will not return to this fundamental element in our eyes.

In conclusion, I would like to make two comments.

The future will tell us whether the law we vote for will suffer the lightning of the Arbitration Court just like the legislation we change. Honestly, I do not think so. I believe that the proposed legislation sufficiently guarantees the observance of the principle of equality and will allow, we are convinced, to bring in the majority of cases, a humanly acceptable response.

Finally, I will end by hoping that this reform, which has been expected for many years, becomes a concrete reality as soon as possible. Many families, of whom I have received the touching testimony of a life made more difficult by the application of current legislation, are waiting for themselves or for others for this new text.

It is therefore with conviction that my group will vote in favour of this text.

Mr. Speaker, Mrs. Minister, colleagues, the discussion of these texts was already far advanced at the time when I was allowed to be part of the Subcommittee on Family Law. Treatment has been ongoing for a long time. I had to find my way in that complicated and complex subject that is the Family Law and will remain after today. Furthermore, it must be said that the bills, the treatment and the amendments were not always equally logical and clearly aligned with each other. This may be due to the many initiatives that have been taken in this regard.

In any case, I immediately had mixed feelings when I first got acquainted with the proposals and the numerous amendments already submitted at that time. And for two reasons. First, another finding – which is happening nowadays every time a family law text is discussed – that the traditional family has apparently had its best time. This is a factual determination. Nobody and everyone is to blame for this because it is a social phenomenon. Nevertheless, the traditional family — I emphasize this and continue to do this — remains the cornerstone of society for the Flemish Interest. Therefore, we find it a worrying evolution that such legislation is increasingly adapted to the situation of so many broken families, in best case joined together. This is the social evolution, they say. The approach to the bills by the various colleagues always responds and always follows the logic of that social evolution. The Flemish Importance does not just lay down on this. Parliament is not just a machine to make laws that are only focused on following social developments. This is what we find most difficult, especially in these matters.

With adjustments to the needs of time, we agree. Everyone must have sufficient sense of reality to adapt things to the needs of the time. We also agree with the improvements made in the legislation. These are ⁇ in the proposal that has finally found its way to these banks, including the right to recognition by the biological father, which is being expanded and where the mother’s arbitrary right to block recognition may find much less passage in the future. This is a positive evolution. This brings the Flemish Importance perfectly.

With adjustments in the light of judgments of the Arbitration Court, we can also agree. It is the task and duty of the legislator to align themselves with that judicial practice. No problem with it.

However, President, colleagues, this is not the end of the shoe and we continue to raise fundamental and ideological objections to certain arrangements and measures contained in these texts.

I am thus coming to the most symptomatic, our greatest criticism with regard to the document that is now being presented. I don’t know if anyone has already realized it — I haven’t really had the opportunity to communicate it to this Assembly because the discussions in the Subcommittee Family Law were rather technical and in the Committee for Justice the matter was simply continued as a result of those discussions in the Subcommittee Family Law — but when one gets the texts in globo on the bench and can look at them from close, one still sees certain matters, certain decisions that have been taken, certain matters also for which I have already voted against in the committee. You can find a deeper ground. One can find in it a deeper social evolution that the legislator wants to follow, but which we, as the Flemish Belang faction, therefore still cannot follow, knowing that the state of actual separation begins to prevail on the marriage bond in the case of descent.

Specifically, I refer to Article 5. In the first paragraph, there is actually no problem. When a judge decides, or when a judge permits – as is usually the case – the parties to choose a separate residence, and afterwards a baby is born, thus no longer within the family indeed but outside the family, and as a result of the actual separation is said: the spouse of the mother can no longer be suspected to be the father; until then. For then there is a judge who has said: You shall no longer live together; you may decide to go to live separately, or you must go to live separately.

Then we go to the second member. If the child is born more than 300 days after the date on which the spouses are registered at different addresses — with a number of other provisions — the spouse of the mother is no longer considered to be the father of the child. Well, in fact, there is simply the official who can say with one penny pull that the child is no longer suspected of descending from the husband of the mother. Even up to that, I would say.

Finally, there is the third member. This summarizes the whole philosophy of what the traditional parties still think about marriage today. And that is not bitter much. The marriage is once again thrown into the corner. For if the child is born more than 300 days after the decision of the peace judge and less than 180 days after the date on which that measure came to an end, or if the spouses have actually reunited — even in those cases — the legislator says: the spouse of the mother is no longer considered to be the father of the child. In fact, therefore, the actual separation, which intervened in the marriage bond, prevails on the marriage bond. In fact, that is a misunderstanding and a devaluation of marital obligations. That is where it comes down.

Whoever sees marriage as the cornerstone of society—the traditional family—can find in it nothing but a disregard of that ancient institution which has plagued our society for centuries, millennials.

In any case, what will be the consequences of this legislation? More children will come into the world without a father and remain in the world. At least that is the consequence. Despite the existence, sometimes, of a marriage bond! Thus, less sense of responsibility is demanded, no matter how one turns it or turns it, from the spouses, from man and woman.

One may be confident to know that I am not the one who storms against loosening, promiscuity. These are terms that have not been used to me when it comes to fundamental social problems. I would like to say one thing here: the marriage bond, colleagues, is partly reflected in the new regulation. I say it again: although there are many positive developments in this dossier, it is also appropriate that one consistently position itself. We have—this is the summary of the whole—our considerations about this evolution. We cannot stand behind there. We will not approve the text.

Mr. Speaker, dear colleagues, I will begin with a few general considerations in which I will insist on the fact that all human beings have a father and a mother who gave them life. Sometimes it is useful to remember such basic things. It is well known, however, that the legal reality is not so simple and that it gives rise to many complexities and complications in family life. by

Fatherhood is the bond that connects a child to his father and mother. This link is established by blood or, in some cases, by law or by judgment. It then confers rights and obligations to the child and parents, regardless of the circumstances of the child’s birth. The consequences are not small since they concern parental authority, maintenance, education, succession rights and I pass. by

There is also — and it is not the least important thing, but on the contrary — the affective relationship that will weave between the little one and his perpetrators. And above all the stability the child needs in the face of the increasing difficulties of couples in their affective bonds and in their "affective" bonds towards society.

The traditional principles of filiation are obviously challenged as a result of the emergence of new family structures. We can mention the multiplication of off-marriage births, the children of different fathers or mothers living in the same family, families recomposed following divorce or separation, the new control of fertility, medical assisted reproduction, DNA tests allowing to identify biological filiation more reliably than before.

So, in our reflection, should we prefer the bond of the blood or the bond of the heart? Or, in some cases, find a balance between the two?

This question, Mr. Speaker, dear colleagues, Mrs. Minister, has been at the heart of the parliamentary debate held first within the subcommittee "Family Law", from the beginning of 2004, then within the Justice Committee until today, that is, for almost a year and a half.

I would like to emphasize that the reform is the result of exclusively parliamentary initiatives and that we wanted not to limit ourselves to the discrimination identified by the Arbitration Court when it was addressed, but to introduce a comprehensive reform of the law of filiation. by

Of course, the Family Subcommittee has documented itself with many experts — university professors, lawyers, magistrates, civil status officers — whom I thank here for their valuable contribution. Furthermore, I would like not to thank the colleagues who have participated in this methodical and long-lasting work, of extreme complexity, with their sensitivity and their skills, in order to give us today the text that is submitted at this plenary session to your approval.

I think it is important to resume the current reform in its historical context. The lawmaker of 1987 wanted, at that time, to eliminate the discrimination between legitimate child and natural or adulterous child. He mostly wanted to comply with the Marx judgment of the European Court of Human Rights. The will was praiseful, but, unfortunately, it did not enable to completely remove the discriminations contained in the law of filiation, which had been repeatedly highlighted by the Arbitration Court since 1992.

Indeed, the concern of the legislator of the time was not to undermine the peace of the families and, in this view, he sometimes chose to prioritize the de facto link on the biological link, in particular by imposing strict deadlines for the contestation of paternity. As I mentioned in my introduction, over the past twenty years, society has evolved and the right of filiation is no longer adapted to the current reality in such a way that we felt the need to reform it. by

The text we propose for your approval is the result of a balance sought around three imperatives. First, to take into account the evolution of society while preserving the stability of the families, founding elements of society, in our opinion; second, to simplify the procedures and, third, to ensure, in these procedures, the equality of all children but also of the father and mother, competing in the procedures related to filiation.

The most remarkable advances that I would like to emphasize are the following.

First, there is an easing of the presumption of paternity in Articles 315 and 316bis of the New Civil Code. At the time of marriage, parents undertake to consider that the children that will be born during the marriage will be their children. It is important to recall it. We don’t want to change anything to this rule when parents agree well. However, we find that three divorces are pronounced on four marriages, and this every year. We therefore consider that, after a separation or after a divorce application, duly proven by the documents as provided in Articles 316bis and following, the presumption of paternity must no longer play, as in the past. In fact, it is logical to consider that in case of separation, the child is likely to have another father than the husband or the former husband of his mother. Therefore, we propose to recognize that a filiation other than that of the husband or ex-husband may exist even from the date of separation from the mother of the child. In order to do this, the proof and procedure introduction system is loosened. It will be sufficient to prove the existence of separation at the time of the legal term of conception in order to exclude the presumption of paternity referred to in Article 315 of the Civil Code. However, the spouses remain masters of their destiny, this is important to emphasize. They can therefore always, by mutual agreement, request that the presumption of paternity play, notwithstanding their separation.

So we favored the opinion of new couples who were formed thinking that there were high chances for the children from these new couples to be the biological children of these new couples. Nevertheless, if spouses have separated and a child comes out of their union despite the separation, they may, and it is normal, make sure that that child can be recognized as theirs but they must, at that time, make a declaration with the civil status officer. This choice makes it possible to take into account the evolution of society by promoting, at the moment of birth, the bond of blood, that is, the establishment of biological filiation. This will allow, on the one hand, to avoid litigation proceedings and the significant costs that they still incur today because most of the time the ex-husband will not be the father and will not refrain from challenging his paternity and, on the other hand, to take into account the best interests of the child by avoiding that he is born in a conflicting environment where his filiation is not certain.

I come to the recognition and the search for paternity or maternity. At present, while the law is not yet changed, when the parents of the child are not married, the father can make the move to recognize the child before the civil state officer. The mother and the child, if the latter is adult, must therefore give their consent to this recognition.

On the other hand, in the project that is submitted to you, it is considered that asking people their consent for such recognition can no longer be allowed and falls within the simple formalist procedure.

The judge may, therefore, if the child is more than one year old at the time of the application, refuse recognition if it is manifestly contrary to the best interests of the child. It should be noted that this paternal recognition cannot take place in case of rape of the mother until the decision on public action is flooded in force of thing judged.

I would like to explain for a moment in what situation we discussed and negotiated this advance. For some, the obligation to seek the consent of the mother was a discrimination against the father. Nevertheless, it seemed to us that it was in the best interests of the child that the mother was associated with this process and that it was impossible that recognition could take place when the mother disagrees. Therefore, the mother is inseparably associated with this process. Much better, the best interests of the child are taken into consideration more widely when the child comes from the commission of an offence called “rape”. Here I join my colleague and cousin Melchior Wathelet. Indeed, it is evident that taking into account the best interests of the child only after the period of one year from the date of his birth is an automated procedure that will not, in some cases, correspond to the reality. We have had a lot of discussions on this subject. Some of us considered that it is obvious that a one-year-old child lives close to his biological parents and that there are high chances for recognition and research of paternity or maternity to correspond to biological truths if the child is under one year old. The aim was to simplify, avoid mystifications and lies and make sure that recognition or research is done as quickly as possible. But it seems to me dangerous to admit that, because the child is less than one year old, he is automatically close to his biological parents. Everything is possible in terms of subsistence. All myths are possible. Therefore, it seemed delicate for us to grant — and I remain hungry in this matter — this automaticity while the child is under one year old, that he is very young and that the State must ensure its protection.

As regards paternity and maternity investigations, it must be borne in mind that, in the same way as recognition, they are based on the same procedures and put or attempt to put the father and the mother equally.

I will end with the disputes of presumptions and recognitions. As for the presumption of the husband, the law currently says that "the father is the one that the weddings demonstrate." So there is a presumption that exists in favor of the husband of the mother. We know that, sociologically, this truth is less and less affirmed, since couples separate, often fly back into just companionship and have children that must be well recognized.

Contestation from the recognition should be permitted. In this regard, we also discussed extensively the question of whether or not to disrupt or allow to disrupt the peace of families by untimely protests. The contestation of the recognition establishing paternal filiation and that of the presumption of paternity will therefore be done in the same way. And the contestation of the presumption of paternity is open in this proposal to the one who claims to be the biological father and only to that one, thus lifting the discrimination existing between the contestation of recognition and that of the presumption of paternity, discrimination denounced by the Court of Arbitration.

Contesting a presumption of paternity must remain a responsible act, where the central question must remain the best interest of the child and where it is necessary to assess whether or not there is establishment of a common life between the child and the parent whose filiation is contested. We want – this has been the point of view of the MR during all discussions – to ensure and preserve the balance of the child raised by a couple who considers him as his own. We cannot accept that a supposed biological father, who becomes aware of the birth, may come at any time and in any condition to break this stability by challenging the fatherhood of the husband and the father’s bond that has been established between the child and the one who, from the beginning, considered him as his own.

Once the relationship of parenthood is established, it is important to preserve the family framework of the child, to ensure stability in his interest. Priority is thus given to the possession of the state of the child which remains an obstacle to recognition by another man than the husband. However, I reassure those who would experience fears. In a whole series of cases – I said it from the beginning in my presentation – it has appeared appropriate to simplify the paternity contestation by declaring it founded in cases of separation of spouses, such as those listed in Article 316bis new, which establishes the hypotheses where the presumption of paternity can be rejected, that is, when it is proved, irrefutably, either before the judge, the civil status officer or the notary, that the separation of the spouses is proven.

When the child must give his consent to recognition - in this regard, I am on the same wavelength as Mr. Wathelet - for reasons of fashion and so-called simplification relating to all procedures, some believe that the 12-year-old child is already able, as in matters of adoption, to give his consent to paternal recognition, by the hypothesis, the recognition requested by a man other than the husband of his mother. It is quite obvious that, for me, this 12-year-old cut age is quite artificial.

I would have far preferred, with regard to a question of the status of persons and a link even stronger than that of adoption, that the age to which the child is asked for his opinion on the law concerning adoption is not aligned and that in the context of filiation the age of 15 years is ⁇ ined with regard to the child who must give his consent to recognition.

In conclusion, Mr. Speaker, dear colleagues, Mrs. Minister, we believe that we have established a balanced text that takes into account the changes in family life and the evolution of the notion of marriage in our society — we will vote on this text in this sense. While the contents of the right to childbirth must remain rigorous given the importance of the matters—children and their right to be educated and loved, parents and their right to create a family in full will and their duty towards children who are legally their descendants, these rules must not be rigorous. They must adapt to the new family cells, the marriage being no longer the only model of the family.

The proposed text seems to me to accomplish a balanced synthesis between these two concerns. Its guidelines are the interest of the child as well as the flexibility and realism of the procedures. With regard to the best interests of the child, we have chosen to prioritize this interest at the time of birth by recognizing the existence and importance of biological filiation. Indeed, the reality of different families we know today requires that we go in this direction. We must no longer impose rigidly a model that no longer corresponds to the lives of people. More and more children have a biological father who is not the husband of their mother.

The reality of the heart is also to be taken into account. There will therefore be not only the bond of blood that will found the filiation. The bond of the heart and the respect for it must lead after birth to securing the established bond of filiation. In fact, it is in the first interest of the child — and I will say even more: of his right to be born in the most favorable context and in any case as free as possible from conflicts around his person — that the bond of the heart be also recognized. He is also entitled to have a family and not to see it questioned in a timely manner. It is in this perspective that the relationship established by the child has remained at the center of the reflections and constituted for us an absolute priority, justifying the refusal to question these situations through untimely recognitions or contestations.

The same realism presided over the flexibility of procedures and their simplification. We have adapted the existing legislation on the substance to the realities experienced by children and the protection of their interests. This has led us to simplify and streamline the procedures for subsidiary actions. It is for all these reasons, my colleagues, that the MR will vote on the proposals submitted for approval at our plenary session. I said and I thank you.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker. Indeed, there has already been a lot of ink flowing on this reform of the right of descent, and many more words have been used in the long run ahead of the plenary session.

As Martine Taelman has already said, in the Family Law Subcommittee it was initially our intention to come to some limited, let alone punctual, adjustments by means of detailed legislative proposals based on a number of decisions of the Arbitration Court.

When the work in the subcommittee had already progressed, a comprehensive bill was put on the table, which led to the decision to initiate a global reform. That was the beginning of a few months of work. We have been sweet with it for a very long time.

We held several hearings in the subcommittee. All academic specialists professors of our Belgian universities were heard. After we held a vote in the Justice Committee for the first time, they were also given the opportunity to do a legal-technical review. Subsequently the comments were taken into account.

I say this to emphasize that we did not go ice overnight, but did everything we could to deliver a thorough and solid reform. There will undoubtedly soon appear in the jurisprudence pieces of professors and other academics who will argue that we should have done the sister or so, that we should have done it otherwise. It is undoubtedly inevitable that those pieces will appear in the legal doctrine. By the way, this was determined in advance.

So many professors, so many different opinions, so proved in the hearings. Sometimes our work consists in simply making a choice from the many opinions. That is our job as a politician in this Parliament.

This is a ⁇ important reform of our descent law. The law of descent is the true heart of our family law. It has already been pointed out that that heart is as important technically as fundamentally. I am convinced that with this reform we are making an important step forward in the adaptation of our legislation, in particular of our family law, taking into account a new social reality. The decomposition of the legal fiction of the paternity rule, in order to take more into account the biological reality, is the crucial focus.

In all reforms – and I would like to emphasize this – the interests of the child were and are central. I am not going to explain the content of the reform here, but I am convinced that the number of painful procedures in this will yield drastically. I am also convinced that by reducing these procedures, much human suffering will be saved.

I would like to conclude by pointing out that the SP.A will of course approve this proposal.