Admissibility of a late paternity action due to delay in the appointment of a curator

Facts

A paternity action was brought late because the competent guardianship authority had not learned in time that the child had been declared illegitimate by a foreign court. The action is nevertheless admissible, as once the judgment was known, the curator was promptly appointed and the action was filed.

Considerations

According to Art. 308 CC, the paternity action must be brought within one year of the child's birth. When the mother was married at the time of conception, the action can only be brought after the child has been declared illegitimate by the judge (Art. 316(1) CC). In this case, the time limit runs from the day the child was declared illegitimate (Art. 316(2) CC).

The Federal Supreme Court has always considered this time limit as a preclusive time limit and not a statute of limitations. It initially refused the possibility of restoring it in case of exceeding (ATF 45 II 237). However, it subsequently admitted exceptions, in particular when the delay was due to the defendant's conduct (ATF 46 II 90, 83 II 98) or an error in the introduction of the action (ATF 61 II 149).

In the present case, the delay is not attributable to the…