SECTION XIV - Parent And Child

VerfasserE. J. Cohn
Amt des AutorenSir
  1. Questions of legitimacy are governed by the law of the country whose nationality the husband of the mother possessed at the time of the child's birth or, if he had died before that time, at his death, article 18 (1), EGBGB. This rule is so wide that the law thus rendered applicable decides not only the question whether the child is the legitimate child of the father, but also whether it is the legitimate child of its mother. The validity of the parent's marriage is a preliminary question which (semble) is governed by article 13 (see section XIII, para. 7 above) and not by article 18. German law applies, however, by way of exception (article 18 (2)), if the mother is German and the child a minor. The German Courts assume jurisdiction in legitimacy cases whenever one of the parties is a German national or has his or her habitual residence in Germany, for details see section 642 Code of Civil Procedure. They do not consider it to be a question of decisive importance whether their decisions will be recognised abroad.

  2. Article 18 deals only with the question whether or not the child is legitimate. The effects of legitimacy are according to article 19 governed by the lex patriae of the father and, if he is dead, by that of the mother. The law, thus rendered applicable, changes therefore if the lex patriae of the father changes. The term 'effects of legitimacy' includes questions like the duty of maintenance or the termination of parental power. If parent and child were originally German and either the father or the mother lost their German nationality while the child retains it, German law applies by way of exception (article 19 EGBGB, second sentence). If, however, the parents have a foreign nationality, while the child is a German or a dual national one of whose nationalities is German, German law does not apply, because, apart from the case just dealt with, the child's nationality is without importance.

  3. As regards illegitimate children, the question whether a child is illegitimate or not is, of course, governed by the general principle of article 18 (on which see the preceding para.). Article 20 deals solely with the relationship between the illegitimate child and its illegitimate parents.

    (a) As between illegitimate child and mother the mother's lex patriae applies. In case of a change of nationality the applicable law also changes, except in the case of a German mother who loses German nationality after the birth of the child, in which...

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