"One stumble over the cuckoo's nest"
In one of its recent decisions, the Austrian Supreme Court dealt with the so-called "false father regress", and the question whether it is legally compliant to claim back maintenance payments made in the erroneous belief that a child is one's own child.
Unlike the title suggests, the case at hand has less to do with the movie classic by Miloa Forman, but rather with the notorious habits of the bird itself.
The essential fact was that an alleged "father", after the divorce, fulfilled his maintenance obligation for the child born by his then wife. At no time, however, was the "father" aware that the child was not in fact his own child but had been conceived in the course of the woman's extramarital
The Supreme Court ruled in favour of the "father"; arguing that the spouses' financial interests are also protected by the marital duty of loyalty pursuant to Sec. 90 Austrian Civil Code, so that claims for damages can be derived from their violation. Consequently, the protective purpose of this duty covers not only ideal interests but also the financial loss of the alleged father.
Further, as stated by the court, neither the abolition of the judicial punishment of adultery in 1997; nor the concept of marriage, which is currently undergoing social change, is relevant in this context. In addition, the objection of the mother of the child that the coitus took place under the influence of alcohol was dismissed by the Supreme Court as inadmissible.
Interesting fact: In contrast to Austrian case law, the German Federal Court of Justice rejects claims for damages by "false fathers", basically stating that the wife cannot be required to inform her husband immediately that another man might possibly be the biological father.
(4 Ob 82/18i)
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