Facts

Parties and facts:

The appellants A. and B. (heirs) contested the registration of a German birth certificate and recognition of paternity from 1967 in the Swiss civil status register. The respondent C. is a German national born in 1967 in Germany with habitual residence in Germany. Her father E. (a Swiss national) acknowledged paternity in Germany in 1967 and undertook to pay maintenance. E. died in 2016. A. and B. are his statutory heirs from his marriage with A.

C. applied in 2017 to the civil status office of the Canton of St. Gallen for the registration of the German birth certificate and the recognition of paternity by E. The Office for Citizenship and Civil Status (AfBZ) rejected the application in 2018 but was referred back for reassessment by the Administrative Court of the Canton of St. Gallen in 2019. The AfBZ approved the registration in 2020, which was confirmed by the cantonal authorities. The appellants alleged a violation of the Swiss public policy (ordre public) and the non-application of the former law (CivStO).

Considerations

Applicable law and transitional provisions:

The Federal Supreme Court first examined whether Swiss Private International Law (PILA) applies to the case. According to Art. 199 PILA, requests for recognition and enforcement are governed by the PILA if they are filed after its entry into force (1 January 1989). This also applies to legal acts performed before 1989, such as the recognition of a foreign acknowledgment of paternity. The appellants argued that the former law (CivStO) should apply, in particular Art. 8 CivStO, under which the law of the recognising party’s nationality (Swiss law) would have been decisive. The Federal Supreme Court dismissed this argument, as the recognition of the acknowledgment of paternity is to be assessed under the PILA and the transitional provisions of the PILA do not provide for retroactive effect.

Validity of the German acknowledgment of paternity:

The acknowledgment of paternity by E. in 1967 was established under German law as a “Zahlvaterschaft” (merely an obligation to pay maintenance). With the German Non-Marital Children Act (NEhelG) of 1969, which entered into force in 1970, non-marital children were equated with marital children. Art. 12 § 3 para. 1 NEhelG provided for the retroactive upgrading of existing Zahlvaterschaften to legal parent-child relationships. This provision also applies to foreigners who had acknowledged paternity in Germany. The Federal Supreme Court confirmed that the German provision on the retroactive upgrading of the acknowledgment of paternity from 1967 is valid under German law and that the registration in the Swiss register must therefore be approved.

Ordre public exception:

The appellants alleged a violation of the Swiss ordre public (Art. 27 para. 1 PILA), arguing that the German provision constituted a “privileging of foreign children” and violated the prohibition of retroactivity. The Federal Supreme Court rejected this: the ordre public exception must be interpreted narrowly and only applies in cases of obvious violations of…