Child born to married parents
In terms of the common law the husband of the mother of a child, is presumed to be that child’s father, until the contrary is proven.
Child born out of wedlock
In terms of the Children’s Act a similar presumption applies to a child born out of wedlock. The presumption is that the person who had sexual intercourse with the mother at any time when that child could have been conceived will be presumed to be the biological father of the child in the absence of evidence to the contrary which raises reasonable doubt.
In the case of S v L 1992 (3) SA 713 (E) the Court held that the phrase “in the absence of evidence to the contrary which raises reasonable doubt” means that whenever there is evidence to the contrary, the presumption does not operate, or ceases to operate. This confirms the court’s finding in R v Epstein 1951 (1) SA 278 (O), where it was held that a presumption operating “in the absence of evidence to the contrary” merely requires evidence, not proof, to counter the presumption.
The Children’s Act provides that if a party in any legal proceedings in which the paternity of a child has been placed in issue refuses to submit himself or herself, or the child, to take 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 his or her credibility. For example, if a mother claiming maintenance for her child refuses to submit herself and her child to such tests in circumstances were the alleged father claims not to be the biological father of the child, an adverse inference will be drawn against the mother and if there is sufficient evidence of, for example, the mother having had sexual relations with another man at the time of the child’s conception, the alleged father will be relieved of any parental responsibilities and rights in respect of that child.
How can we help?
If you find yourself in a dispute as to the paternity of a child, one of our trained and experienced professionals will gladly assist you and advise you in regard to the best course of action, whether that be through paternity tests, mediation or litigation.
For direct answers to your specific personal questions, please contact us directly.