Rejection of the rectification of the civil status register due to lack of recognition with status effect

Facts

Parties and procedural history:

The complainant, born in 1963, sought the rectification of the civil status register pursuant to Art. 42 CC in order to have her descent from [C.] recorded. In 1966, he had acknowledged paternity in an agreement and undertaken to pay maintenance. The agreement was approved by the guardianship authority, but no entry was made in the civil status register. [C.] died in 2021.

Proceedings at first instance: The Regional Court of Surselva dismissed the claim with a decision dated 13 April 2022. The Cantonal Court of Grisons upheld this dismissal with a judgment dated 1 September 2022 and held that the recognition of paternity by [C.] had no status effect but merely established a maintenance fatherhood. Rectification of the register was therefore not possible.

Appeal to the Federal Supreme Court: The complainant challenged the incorrect qualification of the recognition as maintenance fatherhood and argued that the refusal to rectify the register violated her constitutional rights (Art. 8 Cst., Art. 14 ECHR). She requested the setting aside of the cantonal court’s judgment and the entry of the child relationship in the civil status register.

Considerations

Admissibility of the appeal:

The Federal Supreme Court first examined the admissibility of the appeal. The complainant had a legitimate interest in the rectification of the civil status register pursuant to Art. 42 CC and could raise a violation of federal and international law (Art. 76 para. 1 lit. b, Art. 95 lit. a and b FSCA). The appeal had been formally correctly lodged and substantiated.

Subject matter of the rectification claim:

The complainant argued that the recognition of paternity by [C.] in 1966 had been a recognition with status effect and should therefore have been entered in the civil status register. The cantonal court, however, had found that it was a mere maintenance fatherhood with no family law effects. The Federal Supreme Court confirmed this qualification and held that rectification of the register was only possible if the entry was incorrect at the time it was made or if important facts had been disregarded (Art. 42 CC).

Qualification of the recognition of 1966:

The Federal Supreme Court relied on the provisions of the CC then in force (Art. 302 et seq. old CC), according to which a recognition with status effect had to be expressly declared. The agreement of 8 March 1966 merely stated that [C.] acknowledged paternity and undertook to pay maintenance. There were no indications that he had intended to establish a family law bond. The agreement served exclusively to regulate financial obligations and was not communicated to the civil status office. An entry in the register was therefore correctly not made.

Constitutional and…