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Maintenance and proof of paternity

The very first question which is asked in a maintenance hearing is whether the man is the biological father of the child. There is no duty on a man to pay maintenance if he is not the biological father of the child.

Should the man dispute that he is the biological father of the child, the court would authorise that a blood test be done to determine whether or not he is the father. Although blood tests are never 100% accurate, depending on the exact nature of the test done, they can be as accurate as 99,9%.

There is a presumption in law that when a woman is legally married to a man and a child is born during the course of that marriage, it is presumed that her husband is the biological father of the child. This presumption is derived by a Latin expression “pater est quem nuptiae demonstrant”, which means that the marriage indicates who the father is. This presumption can however be rebutted if the man is able to prove that he is not the biological father of the child. If the man was absent at the time of conception or is impotent or sterile, this is sufficient evidence to prove that he is not the biological father of the child.

In the case of Van Der Harst v Viljoen 1977 1 SA 795 (C) the woman alleged that the man had had sexual relations with her. The man denied this. Blood tests were then done on the man, his parents, the mother and the child. The blood tests proved that there was an overwhelming probability that the man was the biological father of the child. The evidence was accepted.

Normally when one applies to court for a maintenance order and the blood test is requested, the maintenance court would advise the parties of possible hospitals where the parties can have the blood tests done. In Cape Town we have the Mowbray Maternity Clinic and a few other hospitals where tests of this nature are done.

Blood tests in the past in South African Courts were not often used, as the courts held that they could not force parties to undergo such tests. Blood tests have however become more and more popular over the last while. I have in my own experience seen however how some attorneys request blood tests simply as a delaying tactic. Their client may be certain that he is the biological father, but wants to delay the granting of a maintenance order, and therefore requests a blood test to be done. I personally however believe that blood tests are the best way to prove or disprove paternity, and I am very much in favour of them when they are required.

This article was written by Cape Town divorce attorney, Peter M Baker

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