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Law of Persons 2011Lecture 10: Status of children born of unmarried
parents (proof of paternity)
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Agenda
Status of children born of unmarried parents
Terminology (pre- and post- Childrens Act)
Proof of paternity:
Presumptions in our law.
Rebutting the presumptions:
NB: blood- and tissue-testing.
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Proof of Paternity
The creation of presumptions of paternity:1. Married woman.
2. Unmarried woman.
1.Married woman:
The father is presumed to be the spouse:
Pater est quem nuptiae demonstrant.
This presumption is rebuttable (on a balance of
probabilities). The best interests of the child are the paramount
consideration.
The courts are unwilling to declare child extra-
marital:
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Paterpresumption: Case law
F v L : The court correctly applied thepaterrule, which
established a rebuttable presumption in favour of the 2nd
respondent (528).
But the court incorrectly applied another presumption: When a woman has sexual intercourse with more than one
partner, it may be assumed that the man of her choice is the
father of the child (528).
B v E: The court held that it is not in the best interests of the
child to be declared illegitimate.
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Proof of Paternity: unmarried woman
Prior to the Child Status Act:
If the mother of the child named a particular man asthe father, and he admitted, or it was proved, thathe had sex with herat any t ime, he was presumedto be the father.
Under the Child Status Act (s1): A man is presumed to be the fatheronlyif it isadmitted or proved that he had sex with the motherat the timewhen the chi ld could have beenconceivedin the absence (NB!) of evidence to
the contrary. Under Childrens Act (s 36)?
The proof of paternity is similar to section 1 of the ChildrensStatus Act.
The qualification, however, is different: in the absence of
evidence to the contrary wh ich raises a reasonabledoub t.
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June 2009 examthink about how you would
respond to this questionto discuss next week
Normally, the onus of proof or rebuttal in civil
matters is proof or rebuttal on a balance of
probabilities. Critically discuss how section36 of the Childrens Act 30 of 2005 departs
from this standard and the problems it
raises. (8 marks)
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Possible ways to rebut presumptions
of paternity
NB: These ways are applicable to bothpresumptions although it is arguable thats 36 changes the standard of proof for this
evidence in respect of unmarried men:1. Absence of sexual intercourse2. The gestation period
3. Sterility
4. The exceptio plurium concubentium: the plea (ordefense) of several lovers.
5. Physical features
6. Contraceptives
7. Blood and tissue tests
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Types of blood tests
1. Oldest test: Analysis of red blood cells.
This test will sometimes indicate that the mancannotbe the father of the child.
2. HLA system of tissue typing: analysis of white
blood cells. This test can positively identify the natural father.
According to the case law, it is between 99,85%and 99.9% accurate.
3. DNA system of identification: analysis of DNAhereditary structures.
This test, too, can positively identify the naturalfather.
See Ex Parte Emmerson.
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Can a court compel a person to undergo
blood tests to resolve the issue of paternity?
To think about for next week:
What are the arguments used in case law to
answer this question?
Is there any definitive answer in our case
law?
Does section 37 of the Childrens Act affect
matters?