Paternity Disputes

• by Samantha Rich

Paternity Disputes

The issue of paternity arises most often when a father alleges that he is not the biological father of a child/children during a maintenance dispute.

The common law presumption, “pater est quem nuptiae demonstrant”, states that the father is he who is married to the mother. Therefore, a child conceived during a marriage is presumed to the child of the husband. If paternity is disputed, it must be proven.

There are two pieces of legislation which make reference to paternity disputes, the Maintenance Act 99 of 1998 and the Children’s Act 38 of 2005.

When a court hears a maintenance dispute, it must first and foremost determine whether a person is legally obliged to pay maintenance. Only the biological parents of children are obliged to pay maintenance. Hence, before a maintenance claim can proceed, paternity needs to be determined. Paternity is proved on a balance of probabilities. There is a rebuttable presumption that a child conceived during a marriage is the biological child of the husband. The Children’s Act states that where a child is born out of wedlock, and it is proved that that person had sexual intercourse with the mother of the child at any time when that child could have been conceived, that person is, in the absence of evidence to the contrary which raises a reasonable doubt, is presumed to be the biological father of the child.

In order to conclusively determine paternity, both mother, acting for the child, and the alleged biological father must consent to a paternity test. Tests currently acknowledged under South African law include blood tests, HLA tissue typing and DNA testing. Paternity tests can be done in every province by the National Health Laboratory Service or by a private lab. Both parties can refuse to test. However, the Children’s Act provides that if the mother or father during legal proceedings where the issues of paternity arises, refuses to submit him/herself or the child to testing to determine the child’s paternity, the court must warn such party of the effect their refusal might have on their credibility during such proceedings.

If it is determined that the alleged father is the biological father of the child/children, the mother will have a maintenance claim. However, if it is determined that the alleged father is not the biological father of the child/children, the mother will not have a maintenance claim against him.