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Paternity disputes in Divorce 

Definition: Paternity disputes occur in maintenance proceedings because maintenance claims are based upon paternity. Liability needs to be established via a paternity suit. Paternity disputes may be launched if child’s paternity is in question. 

This normally occurs when maintenance payments are in question. Upon hearing maintenance cases, the court must first determine whether the individual in question is indeed liable to pay maintenance.

The maintenance court has jurisdiction to determine paternity, which is based on a balance of probabilities. The court will consider many factors in this determination. 

This includes whether or not the mother and alleged father were married or in a relationship at the time of conception, thus the courts may request paternity testing. 

Paternity Testing - Rebuttable Presumption

If the mother and alleged father were married at the time of conception, there is a rebuttable presumption that the husband is the father of the child. If the mother was not married at the time of conception, the presumptions which are contained in the Children’s Act are followed. 

The Act states 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, then that individual is, in the absence of evidence to the contrary that raises reasonable doubt, presumed to be the biological father of the child.  

It is within the inherent power of a court, as upper guardian of a child, to order scientific tests if that was in the best interests of a child. 

Tests which are currently acknowledged under South African law include:

Blood tests

This is the first and oldest test based on blood cell analysis. 

An antiserum is used in this test to identify the blood groups of the mother, father and child. 

Parents belonging to particular groups can procreate children only to a limited number of possible blood groups; therefore this test can sometimes indicate that the alleged father cannot be the biological father of the child. 

This test is not definitive as many people belong to the same blood group and cannot give a positive and accurate identification of the biological father of the child concerned. 

HLA tissue typing that analyses white blood cells

By determining the haplotype of the child as well as of both the mother and alleged father, it can be determined whether the child has indeed inherited one haplotype from each of the two adults. 

This test can positively identify the biological father of the child concerned. 

In previous cases, medical evidence was presented to the courts and was accepted that tissue typing will indicate the biological father to a degree of probability of 99.9%. 

In certain cases, this test can therefore be used to show that the husband of the child’s mother is not the biological father of the child. 

DNA testing that can also trace family genealogy

DNA testing is the most recent test, previously used in criminology in identifying criminals with accuracy. 

In this procedure, any bodily tissue or liquid (tissue, blood, saliva or even semen) may be analysed to determine a positive identity. 

The test usually involves determining the DNA structures of all parties involved (child, mother and alleged father), as DNA patterns are transmitted to a person’s descendants. 

Owing to the fact that the DNA that is inherited from the mother is distinguishable from that of the father, a specific man can be positively identified as the biological father of the child. 

DNA tests can be used to identify paternity to a very high degree of certainty. 

Maintenance Officer & Costs

The maintenance officer may order that the parties take blood, but only if they consent. The Act further stipulates that if a party refuses to submit to any legal proceedings in which the paternity of the child is in question, relating to a blood test to determine the child’s paternity, then the court must warn such party of the effect their refusal may have on their credibility. 

However, this inherent power does not have to be invoked if paternity is not in dispute. The role of the court, and its duty, is to determine disputes in civil matters on a balance of probabilities. It is not the court’s function to ascertain scientific proof of the truth.

If the maintenance officer is of the opinion that the child’s paternity is in dispute, and if the mother has parental authority and she and the alleged father are willing to submit both themselves and the child to scientific tests to determine paternity but are unable to pay the costs involved, he/she 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 tests.

Should the maintenance officer agree to such a request, the maintenance court may look to the means of the mother and the alleged father, and at any other circumstances that, in the court’s opinion, should be taken into consideration.

At the conclusion 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.

Van Deventer & Van Deventer Incorporated - Divorce Lawyers Johannesburg

Contact Van Deventer & Van Deventer Incorporated today for more information. 


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