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A man who marries a pregnant woman and who knows that she is pregnant at the time of the marriage cannot disavow paternity of such child born of such pregnancy. If another man is presumed to be the father, however, then the provisions of La. Civ. Code Ann. art. 186 apply. The Civil Code recognizes only two instances in which another man is presumed to be the father; both of these are found in La. Civ. Code Ann. art. 185: a child born less than 300 days after the dissolution of the marriage is presumed to have been conceived during the marriage; a child born 300 days or more after the dissolution of the marriage is not presumed to be the child of the husband.
Plaintiff husband filed an action en desaveu and for nullity of marriage, and, in the alternative, for separation a mensa et thoro, against defendant wife. The husband alleged that at the time of his marriage to the wife that she was pregnant with a child that he would not possibly be the father of because he was neither dating nor having sexual intercourse with the wife during the period in which the child was conceived. The husband alleged that he was induced to marry his wife solely because of her false and fraudulent representations that the child she was carrying was his. The husband also requested that the trial court order himself, the wife, and the child to submit to blood tests to determine paternity. The wife filed exceptions of no cause and no right of action in response to each of the husband's allegations. The trial court maintained all of the exceptions and dismissed the case in its entirety, including, of course, the husband's motion to compel blood tests. Plaintiff husband appealed.
Did the trial court correctly dismiss plaintiff’s action en desaveu and suit for nullity of marriage?
The court affirmed the trial court's judgment against the husband and dismissal of the husband's action en desaveu and suit for annulment of the marriage on the ground of duress. According to the court, the plaintiff cannot and did not avail himself of the presumption of another man's paternity which arises under Article 185 of the Civil Code. It follows that the plaintiff cannot maintain this action en desaveu. Moreover, plaintiff’s suit for annulment of the marriage on the ground of duress must also be dismissed, for although it is true that "no marriage is valid to which the parties have not freely consented", Art. 110, there was no allegation that the marriage was coerced by threats or violence.