Legal Matters

If the mother of a child was married at the time of conception or birth or during the intervening period, there is a rebuttable presumption that her husband is the father of the child.

If the child is born out of wedlock, if it proved by way of judicial admission or otherwise that a man had sexual intercourse with the mother of the child at any time when the child could have been conceived, it is, in the absence of proof to the contrary, presumed that he is the father of the child.

In both cases, the biological father has a legal obligation to maintain the child.

A father may challenge that he is the father of a child and ask the mother to have a blood sample taken from her or the child, so that tests can be done relating to the paternity of the child. If she refuses to do so, it is presumed, until the contrary is proved, that the refusal is aimed at concealing the truth about the paternity of the child.

Section 37 of the Children’s Act provides that ‘if a party to any legal proceedings in which the paternity of a child has been placed in issue has refused to submit himself or herself, or the child, to the taking of a blood sample in order to carry out scientific tests relating to the paternity of the child, the court must warn such party of the effect which such refusal might have on the credibility of that party’.

So what happens if she refuses to agree to blood tests, and she can’t be forced to consent?

In the above example, my client does not see the child, but just pays maintenance. In my opinion, he could stop paying. If the mother complains to the maintenance court, the court would not likely order him to pay maintenance for the child in light of her refusal to submit her and the child to testing.

If the ‘father’ has contact with the child, he could take him or her to a clinic to take a simple mouth swab, to determine the child’s DNA. That may be expensive but worth the piece of mind.

Authored by: Roy Bregman  roy@roylaw.co.za Tel: 011 646 0335     

Bregmans Attorneys  www.roylaw.co.za/