13
MARCKX v. BELGIUM JUDGMENT
14 (art. 14+8). This is contested by the Government. The Commission, for
its part, finds a breach of Article 8 (art. 8), taken both alone and in
conjunction with Article 14 (art. 14+8), with respect to Alexandra, and a
breach of Article 14, taken in conjunction with Article 8 (art. 14+8), with
respect to Paula Marckx.
1. On the alleged violation of Article 8 (art. 8) of the Convention, taken
alone
36. Paula Marckx was able to establish Alexandra’s affiliation only by
the means afforded by Article 334 of the Civil Code, namely recognition.
The effect of recognition is declaratory and not attributive: it does not create
but records the child’s status. It is irrevocable and retroactive to the date of
birth. Furthermore, the procedure to be followed hardly presents difficulties:
the declaration may take the form of a notarial deed, but it may also be
added, at any time and without expense, to the record of the birth at the
registry office (see paragraph 14 above).
Nevertheless, the necessity to have recourse to such an expedient derived
from a refusal to acknowledge fully Paula Marckx’s maternity from the
moment of the birth. Moreover, in Belgium an unmarried mother is faced
with an alternative: if she recognises her child (assuming she wishes to do
so), she will at the same time prejudice him since her capacity to give or
bequeath her property to him will be restricted; if she desires to retain the
possibility of making such dispositions as she chooses in her child’s favour,
she will be obliged to renounce establishing a family tie with him in law
(see paragraph 18 above). Admittedly, that possibility, which is now open to
her in the absence of recognition, would disappear entirely under the current
Civil Code (Article 908) if, as is the applicants’ wish, the mere mention of
the mother’s name on the birth certificate were to constitute proof of any
"illegitimate" child’s maternal affiliation. However, the dilemma which
exists at present is not consonant with "respect" for family life; it thwarts
and impedes the normal development of such life (see paragraph 31 above).
Furthermore, it appears from paragraphs 60 to 65 below that the
unfavourable consequences of recognition in the area of patrimonial rights
are of themselves contrary to Article 14 of the Convention, taken in
conjunction with Article 8 (art. 14+8) and with Article 1 of Protocol No. 1
(art. 14+P1-1).
The Court thus concludes that there has been a violation of Article 8 (art.
8), taken alone, with respect to the first applicant.
37. As regards Alexandra Marckx, only one method of establishing her
maternal affiliation was available to her under Belgian law, namely, to take
legal proceedings for the purpose (recherche de maternité; Articles 341a341c of the Civil Code). Although a judgment declaring the affiliation of an
"illegitimate" child has the same effects as a voluntary recognition, the
procedure applicable is, in the nature of things, far more complex. Quite