Can a pregant woman get divorced in Poland? We have been asked this question on a frequently basis. Here we can have two options. The first option is that the father of the unborn child is the husband of the woman and the other option is that it is her new partner.
It happens that the spouses have not lived together for a long period, some times for a few years but for various reasons they have been postponing their decision to legally get divorced. Some times, the pregnancy is the moment when they decide to end their marriage which exists on paper only.
In such situation, we can talk about marital paternity presumption. According to the art. 62 § 1 of the Family Code, a child born during the marriage or within 300 days of its termination or cancellation, is presumed to have originated from the mother’s husband.
If the child is born before the expiry of 300 days from the termination or annulment of the marriage but after the conslusion of its mother’ next marriage, it shall be presumed that the father of this child is the new husband of its mother.
This presumption could only be rebutted by an action for denial or acknowledgment of paternity.
When a woman becomes pregnant during the divorce proceedings, it might be presumed that it is not her current husband who is the father of the unborn child. Divorce proceeding during the pregnancy certainly involves some drawbacks and may cause the divorce proceedings to last for longer than usually.
In a divorce proceedings, the court does not rule on the origin of the child but on the basis of Art. 62 § 1 of the Family Code automatically assumes that the mother’s husband is the father of the child even if the divorcing spouses jointly state that another man is the child’ father.
Consequently, the court will have to determine the amount of child support to be paid by the husband of mother, the parental authority and visitation rights of the husband of child’ mother.
The one way to avoid such illogical decisions is to have the divorce proceedings suspended by the District Court and to bring an action for denial of paternity.
The parties have six months to bring an action for denial of paternity. The husband of child’ mother may bring an action for denial of paternity six months after he has learnd of the child’ birth and sue the child’ mother and the child (art. 63 of the Family Code). The woman has six months from the time the child was born to bring an action for denial of paternity of her husband (art. 69 of the Family Code).
At the court hearing, the impossibility that the mother’ husband could be the father of her child must be demonstrated (art. 67 of the Family Code). It can be proved by DNA test and testimony by mother’s husband and mother’ new partner.
When the case for denial of parternity will be resolved, the court shall continue the divorce proceedings.