When hearing applications for maintenance of a child, a court must determine whether a person is indeed liable to pay maintenance i.e. a paternity dispute. Maintenance claims are founded on the responsibility of the biological parents to support the child and as a result, paternity needs to first be established.
A maintenance court has the jurisdiction to determine the paternity of a father of a child. This needs to be proven on a balance of probabilities. There is furthermore a rebuttable presumption that the husband of the mother of the child is the father of the child if they were married at the time of conception.
Further presumptions are contained in the Children’s Act which may also come into play.
The Children’s Act stipulates that if it is proved that the father of a child born out of wedlock 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 a reasonable doubt then presumed to be the biological father of the child.
A party has the right to refuse to submit to paternity testing, however the Children’s Act provides that if a party to any legal proceedings in which the paternity of the child is in question refuses to submit him/herself or the child to a blood test 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.
A maintenance officer may order that the parties take blood tests, but only if they consent thereto.
If during maintenance proceeding the maintenance officer is of the opinion, or it is clear, that paternity is in dispute and both parties are willing to submit both themselves and the child to scientific tests to determine paternity but are unable to pay the costs involved, either party may at any time during a maintenance enquiry but before the maintenance court makes an order, request the court to hold a summary enquiry into the payment of the costs of the paternity tests.
Should the maintenance officer agree to such a request, the maintenance court must enquire into the financial means of the parties, and look at any other circumstances that, in the court’s opinion, should be taken into consideration.
At the end of this enquiry, the maintenance court may make a provisional order concerning payment of the costs of the tests, including a provisional order that the state pay the whole amount or part thereof; or make no order as to payment of costs.
Should it then be determined that the alleged father is indeed not the biological father of the child, the claim for maintenance from him then ceases and the matter can be taken no further.
Should it be determined that the alleged father is indeed the biological father of the child, normal maintenance proceedings will then commence.
If you are uncertain about your rights to claim maintenance for your child or you need advice regarding maintenance being claimed from you, please contact our offices. We specialise in maintenance matters and we will assist you in a professional and confidential manner.