Amends Articles 1817.º And 1842.º Of The Civil Code On Investigation Of Paternity And Maternity

Original Language Title: Altera os artigos 1817.º e 1842.º do Código Civil sobre investigação de paternidade e maternidade

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DRAFT law No. 178/PATERNITY/MATERNITY RESEARCH X-(CHANGE the time limits) explanatory memorandum knowledge of true ancestry is an important aspect of individual personality, which represent an effective condition of full enjoyment of the right to personal identity and the right to the name, takes on himself the nature of fundamental right with constitutional dignity, as referred to in the Constitutional Court , by judgment No. 99/88, of 28 April: «there is a fundamental right to knowledge and recognition of paternity – which constitutes a reference person, essential if extracts is the right to personal integrity, and in particular the ' moral integrity ', is the right to ' personal identity ', recognized in articles 25, paragraph 1, and 26, paragraph 1, of the Constitution '.

The right to personal identity is thus a right that our Constitution establishes as a fundamental right and which translates in ensuring the identification of each person as an individual, singular and irreducible, and that includes, in addition to the right to a name, a right to ' personal historicity».

In turn, the right to personal historicity designates the right to knowledge of the identity of the parents and may be based, for example, the right to investigation of paternity or maternity.

The question of time-limits for the filing of the investigation of paternity/maternity met deep changes throughout history.

2 The Ordinations provided a period of 30 years for paternity investigation actions, however the code of 1966 was to shorten the period of action proposition, apparently ' as a way to fight the investigation as a pure instrument of paternal heritage hunting».

While countries like Italy, Spain or Austria opted for West or in relation to the investigation of paternity, for considering that the search of the ties omitted the ascendant is a value that takes precedence over any other concerning alleged progenitor, in Portugal and in the wake of the amended paragraph 4 of article 36 of the Constitution of the Portuguese Republic, which abolished the distinction between legitimate and illegitimate children the Civil Code was reformed in 1977, however, this revision did not change the deadlines for the investigation of paternity.

The reason that apparently led to the limitation of the period for the establishment of paternity was the «combating action of the legal determination of the father, as a pure instrument of paternal heritage hunting, when the father was Rico», however, as mentioned in Recommendation 36/B/99 of Mr. Ombudsman and in our opinion, well, ' the truth is that the course of the term shut revelation of the progeny and the legal relevance of kinship , even if there is no inheritance or if you want to '.

On the other hand, and there is no doubt about the legitimacy of the patrimonial relevance of investigating that man behind the research action of paternity, since one can not why their rights in this respect should be distinct from any other heirs, it is also true that not all children of unknown parents aimed at obtaining an inheritance.

In this respect, still reads in the said Recommendation, quoting Prof. Moitinho de Almeida, ' ... There are still children of father incognito, because no one dared to allow children, mercy of circumstances among which looms ahead ignorance, I missed the deadline to investigate their paternity could still do it, although without inheritance effects. What especially interests them, it's not any inheritance in most cases non-existent, but the assignment of a father known to 3 be able to appear before the Government offices, where they have to decline your membership, without displaying the--their inferiority of children of father incognito».

By constitutional law imperative can only restrict rights expressly provided for in the Constitution, but the fact that the investigating that man not being able, at any time, propose its research action, sets up, in our view, a real restriction on the exercise of this fundamental right.

On the other hand, claiming the Constitution that children born of the marriage and outside of it are in the same situation, it is clear that the legal regime set out in article 1817.º of the Civil Code constitutes a restriction on the exercise of the right to personal historicity and discrimination for persons in such conditions.

The regime out of the reform of the Civil Code of 1977, kept the restrictions on the exercise of the right to personal identity and personal historicity and, consequently, to the full enjoyment of the right to the name, as regards the deadlines for the filing of the action of paternity/maternity leave.

However, the law No 21/98 of 12 may, to allow the establishment of the action within one year after the date of death of the alleged mother in case the investigating that man be for her treated as son and without this treatment, voluntarily ceased came to an important step with regard to the removal of these restrictions.

Despite this important progress, other restrictions remain in the current system, including the time limits for the filing of the actions in cases where there was no such treatment.

And while there is no doubt about the legitimacy of the patrimonial relevance of investigating that man behind the research action of parenthood, it is also certain that a solution to allow, at any time, the right to bring an action for the investigation of paternity, also with property consequences, would enter into conflict with other constitutional rights, in particular the safety, stability and legal certainty , and would be likely to affect legal relations of assets of third parties. 4 But we cannot, therefore, be ' hostages ', and not to look for other solutions that allow those who, off of any material interests, just wish to, with the investigation of paternity, the exercise of the right to his personal historicity, the right to the name.

That's what this project aims, allow at any time can be proposed the action of paternity/maternity when you intend to only produce purely personal effects, excluding, therefore, not to affect any legal relations of assets from third parties, any rights or benefits of nature.

Even so, we cannot say that this project creates a discrimination between children, those who are children with the fullness of duties (personal and property) and the other, which would only be children with rights exclusively personal, because in fact the project will only blur or decrease the extent of existing discrimination between children undeniably with personal and property rights and children without personal rights either equity either. Therefore, the discrimination already exists, the intention is to reduce the scope of this discrimination.

This initiative has already been presented at the VIII and IX Legislatures and was even approved in General on 22 December 2000, but would eventually expire with the end of the 8th parliamentary term.

Bearing in mind the recommendation 36/B/99 of Mr. Ombudsman and considering that the right to personal historicity represents a true status of full enjoyment of the right to personal identity and the right to the name, «the Green» through the present draft law therefore aim to remove obstacles, constraints or restrictions on the freedom to investigate fatherhood.

Thus, the undersigned Members of the parliamentary group «Greens» feature, in accordance with the rules and applicable constitutional, the following draft law: article 1 1817.º article 5 of the Civil Code shall be replaced by the following: ' article 1 — 1817.º (...) 2 — (...) 3 — (...) 4 — (...) 5 — (...) 6 — (...) 7 — as long as the intended effects are merely personal in nature, research action of motherhood can be proposed at any time».

Article 2 the present law enters into force immediately.

Assembly of the Republic, November 7 2005.

The Members of "Greens",