Facts
In this case, the husband brought an action to disavow paternity against his wife and the child born during the marriage, in accordance with Art. 253 para. 2 CC. Although the wife confirmed the husband's allegations regarding the impossibility of his paternity, the child's guardian opposed the disavowal action. Only the child appealed the first instance judgment that had granted the disavowal claim. The respondent husband concluded that the appeal should be dismissed, as did the mother in a spontaneous submission. The mother argued that under Art. 253 para. 2 CC, the disavowal action had to be brought against the child and the mother, and that these two defendants formed a necessary passive joinder. She contended that the co-defendants could only act in court jointly, which was not the case here, so the appeal filed by the child alone should be dismissed for lack of active legitimacy.Considerations
The Federal Tribunal considers that, although the disavowal action must be brought against the child and the mother under Art. 253 para. 2 CC, both have standing to file an appeal for reform with the Federal Tribunal alone, whose judgment will then have effects with regard to all co-defendants. Indeed, in a case relating to the status of persons, where the principle of party disposition is restricted for reasons of public order, it would not be justified to prevent the child from seizing the highest…