Non-pecuniary loss caused by paternity fraud and parental responsibility

Abstract

In recent years, the Spanish Appellation Courts have experienced an increase of claims on paternity fraud. This paper contains a critical analysis of the judgments on this subject, through the study of the essential elements of the compensation for non-pecuniary loss, in order to propose to move the focus from the non-compliance the duty of fidelity to a closer approach to the current configuration of parental responsibility. To advance this hypothesis, it connects the question of non-pecuniary loss for paternal discrepancy with the criteria of the Supreme Court about not to apply unjust enrichment to support the return of maintenance, because the High Court position displaces all pecuniary and non-pecuniary claims to the general rules of tort law.