When a foreign national in an illegal situation gives birth to a child acknowledged by a Belgian parent or a legal resident, this acknowledgement may, in the majority of cases, entitle her to stay in Belgium.
Since 1 April 2018, a new law on acknowledgement of paternity has come into force and is applicable in all Belgian municipalities.
Registrars now have the legal option of suspending the procedure to request advice from the Parquet (public prosecutor) or even refusing to register paternity certificates considered as bogus i.e. to facilitate obtaining residency for a foreign national in an illegal situation.
This law addresses different situations:
- Acknowledgement in Belgium by a Belgian national or a person holding a permanent residence permit of a child with foreign nationality;
- Acknowledgement in Belgium of a Belgian child or a child holding a permanent residence permit by a foreign national;
- Acknowledgement in a foreign country.
What has changed since the law of 2017?
The new acknowledgement of paternity procedure is now modelled on that of marriage or legal cohabitation.
It takes place in two steps:
The declaration – Submitting the application – Fraudulent intent
A- In order to acknowledge paternity, you must first obtain the following documents:
- a certified copy of the child’s birth certificate;
- a certified copy of the birth certificate of the applicant seeking acknowledgement and, where applicable, showing the family relationship; in the case of the birth taking place abroad, the full birth certificate must be authenticated by the Belgian Embassy of the country of origin or apostilled, and translated into the language of the municipality of birth;
- proof of identity of the applicant seeking acknowledgement and, where applicable, showing the family relationship I.e. a passport or valid national ID card);
- a nationality certificate of the applicant seeking acknowledgement and, where applicable, showing the family relationship;
- proof of registration on the population register, the aliens register (or the waiting list) or proof of the current residence of the applicant seeking acknowledgement and, where applicable, of the person who must give his/her prior consent or the child;
- proof of unmarried status or proof of the dissolution or annulment of a previous marriage celebrated before a Belgian registrar and, where applicable, proof of the dissolution or annulment of marriages celebrated before a foreign authority unless they pre-date a marriage celebrated before a Belgian registrar, of the candidate seeking acknowledgement where the law applicable under article 62 of the Code of Private International Law provides that a person may not acknowledge a child of a person other than his or her spouse; if the marriage certificate has been established abroad, it must be legalised by the Belgian Embassy in the country of origin or apostilled, and translated into the language of the municipality of birth;
- where applicable, proof of unmarried status or proof of the dissolution or annulment of a previous marriage celebrated before a Belgian registrar and, where applicable, proof of the dissolution or annulment of marriages celebrated before a foreign authority unless they pre-date a marriage celebrated before a Belgian registrar, of the mother in the event of acknowledgement prior to birth or on the birth certificate; if the marriage certificate was established abroad, it must be legalised by the Belgian Embassy of the country of origin or apostilled and translated into the language of the municipality of birth;
- if applicable, an authentic document showing that the person required to give his/her prior permission consents to acknowledgement;
- in the case of prenatal recognition, confirmation from a doctor or midwife confirming the pregnancy and indicating the probable due date;
- any other authentic document showing that the person concerned has satisfied the legal requirements for acknowledging paternity.
If the documents submitted are in a foreign language, the registrar may request a sworn translation be made of said documents.
- For persons born in Belgium, the registrar will request a certified copy of the birth certificate from the register.
- The same applies if the birth certificate was transcribed in Belgium and the registrar is familiar with the place of transcription.
- As long as it is entered in the register of the population or the aliens register on the day of the declaration, the applicant seeking acknowledgement is exempted from providing proof of nationality, the civil status and registration in the register of the population or in the aliens register. The registrar will add an extract from the national register to the file.
- However, if the registrar considers him/herself insufficiently informed, he/she may ask the person concerned to provide him/her with additional evidence to support this data.
After submitting the paternity acknowledgement documents, the registrar may refuse to register the acknowledgement and halt the proceedings if he/she considers that “it appears from a combination of circumstances that the intention of the applicant seeking acknowledgement is solely to obtain a residence benefit” (article 330/1).
The registrar will then halt the proceedings for two months from the date of the declaration in order to carry out further investigations. The royal prosecutor may extend the deadline by 3 months.
If at the end of these 5 months (commencing when the declaration is made) there is still no decision, the registrar must acknowledge the paternity.
If the registrar consulted the Parquet (public prosecutor) for advice, the duration of the paternity procedure can last up to 8 months.
B- Then the acknowledgement must be registered at the latest within 3 months of the adoption of the act of acknowledgement.
C- Article 330/3 provides for the possibility of the public prosecutor cancelling this acknowledgement if it is considered fraudulent.
D- This law sanctions fraudulent intent
That is to say: “the intention of obtaining an advantage in terms of residency”. This implies that even if the child has a biological link with the applicant seeking acknowledgement, the registrar has the power not to acknowledge this and the public prosecutor will be able to cancel it.
It is considered as the conception of a child made for the sole “purpose of obtaining a residency advantage” which is sanctioned. The parentage, even if it is a biological reality, will not be established if this fraudulent intent is presumed by the registrar or the public prosecutor.
A criminal section provides the same penalties as those incurred for “marriages of convenience” in the event of fraudulent paternity acknowledgement.
Article 79ter-bis of the Judicial Code states that:
1er. A person who acknowledges a child or gives his prior consent in this respect and in the circumstances set out in Article 330/1 of the Belgian Civil Code shall be punished by a term of imprisonment of one month to three years and a fine of between fifty Euros and five hundred Euros.
A person who receives a sum of money or other benefits in exchange for such acknowledgement or has given prior consent to such acknowledgement, shall be punished by a term of imprisonment of two months to four years and a fine of between one hundred Euros to two thousand five hundred Euros.
A person who resorts to violence or threats against a person in order to compel such acknowledgement or obtain prior consent to such acknowledgement shall be punished by a term of imprisonment of between three months and five years and a fine of between two hundred and fifty Euros and five thousand Euros.
§2. An attempt to commit the offence set out in paragraph 1, line 1 shall be punished by a term of imprisonment of between fifteen days and one year and a fine of between twenty-six Euros and two hundred and fifty Euros.
An attempt to commit the offence set out in paragraph 1, line 2 shall be punished by a term of imprisonment of between one month and two years and a fine of between fifty Euros and one thousand two hundred and fifty Euros.
An attempt to commit the offence set out in paragraph 1, line 3 shall be punished by a term of imprisonment of between two months and three years and a fine of between a hundred and twenty-five Euros and two thousand five hundred Euros.
If the registrar refuses to register the acknowledgement, you may file an appeal (paternity or maternity) at the family court in the place where the application for acknowledgement was submitted.
However, there is no direct legal recourse against the registrar’s decision.
And the best interests of the child?
The Conseil d’Etat also sees a problem with cancelling acknowledgement even when the biological link is proven “the sole concern to combat the obtaining of undue advantages in terms of residence on Belgian territory cannot, in itself, apart from any other consideration based on the interests of the child, justify obstructing the establishment of a filiation corresponding to biological filiation.” (DOC 54 2529/0 01, p. 67)
This is disproportionate to the interest of the child because, in this case, the only concern to fight against obtaining undue advantages in terms of stay in the territory may result in the refusal of the link of real filiation.
On 19 March 2018, eleven associations filed an appeal with the Constitutional Court against the law on fraudulent acknowledgements considered as seriously violating the Belgian Constitution and the United Nations Convention on the Rights of the Child.