Paternity Investigation in Portugal (and Automatic Paternity Research)
- Caroline Meijerink
- Apr 3
- 3 min read
Paternity and maternity only have legal effect if they appear in the birth register. When a child's birth is registered, and only the mother is identified, the court automatically initiates a paternity Research (Art. 1864 of the Civil Code). This initiative aims to protect the right to personal identity, in accordance with Article 26(1) of the Constitution, and reinforces the social value of paternity and maternity (Article 68(2)).
And the aim of the action itself is to lead to voluntary recognition of paternity, when the putative father acknowledges paternity, or to an action for judicial recognition of paternity when, although the person who is possibly the father does not voluntarily recognize it, there are serious indications that he is in fact the biological father.
Likewise, there is the automatic Maternity Investigation, when the mother is not identified in the birth register. The focus of this post is on establishing paternity only, but I would like to point out that there is also a maternity investigation.
1. Automatic Paternity Research: How does it work?
The process begins with the court hearing the mother and, if possible, identifying the father. If the father acknowledges paternity, a declaration of paternity is drawn up. If not, and if there are indications that allow the court to conclude that paternity is likely, the case is sent to the Public Prosecutor's Office for possible investigation (Art. 1865 of the Civil Code).
It is important to note that the Automatic Investigation is a secret process, protecting the privacy of the people involved (Art. 61 RGPTC).
If there is sufficient evidence, then the Public Prosecutor's Office will initiate the Paternity Investigation Action (Article 62 RGPTC).
2. Paternity Investigation in Portugal - Who Can File a Paternity Investigation Action?
In addition to the Public Prosecutor's Office, the child themselves can initiate Paternity Investigation proceedings in Portugal, being represented by their mother if they are still a minor, and when maternity has already been established (Art. 1869 of the Civil Code).
Even if the mother is still a minor, she can represent her child in the action without needing authorization from her parents, but she will be accompanied by a special curator appointed by the court (Art. 1870 of the Civil Code).
3. Deadline for starting legal proceedings
Historically, the time limit for filing a paternity investigation action used to be just two years after the applicant reached the age of majority, but now it is 10 years after the applicant reaches the age of majority or is emancipated (Article 1817 of the Civil Code).
So the action can be brought throughout the investigator's minority, plus the entire period of up to 10 years after they reach the age of majority. After this time, as a rule, it is no longer possible.
There are other possible time limits in addition to this general rule, such as the situation when, although paternity has not been established, the investigating party becomes aware of facts or circumstances that make the investigation possible and justifiable.
In this case, the action can be initiated within 3 years of the occurrence of this fact: of the investigating party becoming aware of these circumstances that make the investigation possible and justified (Article 1817(3)(c) of the Civil Code c/c Article 1873 of the Civil Code).
4. Admissible Evidence
The law expressly states that blood tests and any other scientifically proven methods that allow the father to be identified are admissible as evidence (Article 1801 of the Civil Code).
5. Against Whom Should the Lawsuit Be Filed?
The action must be brought against the person believed to be the father. If he is already deceased, the action can be brought against the surviving spouse who is not legally separated and also, successively, against the descendants, ascendants or siblings (Article 1819 of the Civil Code).
Successively means that they are not all placed in the proceedings at the same time, but successively. In other words, if there are relatives of the father in these 3 categories, descendants, ascendants and siblings, only the descendants will be in the proceedings, together with the surviving spouse, in a necessary joint litigation (Article 33 of the Code of Civil Procedure).
If there are heirs or legatees, it may be necessary for them to take part in the action too.
6. Provisional Alimony
During the proceedings, if the court considers that recognition of paternity is probable, the accompanied minor or adult child is entitled to provisional maintenance from the start of the proceedings (Art. 1821 of the Civil Code).
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