Facts
This case concerns a paternity action regarding a child declared illegitimate. According to Art. 316(2) CC, the time limit for bringing such an action begins to run from the day the judgment declaring the child's illegitimacy becomes res judicata. The provisions of cantonal procedural law under which res judicata acquired by the expiration of an appeal period or the withdrawal of an appeal is retroactively postponed to an earlier date (e.g. the day the judgment was pronounced) must not be taken into account in calculating the time limit for bringing the paternity action.
Considerations
The Federal Court has ruled that the one-year time limit under Art. 316(2) CC for bringing a paternity action only begins to run from the day the judgment declaring the child illegitimate becomes res judicata, and not from the day the judgment was pronounced. This interpretation is based on the fact that Art. 316(1) CC makes the possibility of bringing a paternity action conditional on the child having been previously declared illegitimate by a judgment that has become res judicata.
Thus, a judgment that declares the child illegitimate, but which has not yet become res judicata, cannot start the time limit under Art. 316(2) CC. Similarly, the provisions of cantonal procedural law that provide for res judicata to be retroactively postponed to the date of the pronouncement of the judgment are not relevant for the calculation of this time limit, as only the actual date of the judgment becoming res judicata is decisive.
In the present case,…