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    Persons 10

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    Rodney Ulyate
    This document discusses the status of children born to unmarried parents under South African law and the proof of paternity. There are presumptions of paternity for both married and unmarried women that can be rebutted with evidence. For unmarried women, the Children's Act departs from the usual balance of probabilities standard and requires evidence that raises a reasonable doubt. Blood and tissue tests are among the ways presumptions can be rebutted, and courts have powers to compel testing to resolve paternity issues, though case law is still developing on this point.

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    Persons 10

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    Rodney Ulyate
    80 views9 pages
    This document discusses the status of children born to unmarried parents under South African law and the proof of paternity. There are presumptions of paternity for both married and unmarried women that can be rebutted with evidence. For unmarried women, the Children's Act departs from the usual balance of probabilities standard and requires evidence that raises a reasonable doubt. Blood and tissue tests are among the ways presumptions can be rebutted, and courts have powers to compel testing to resolve paternity issues, though case law is still developing on this point.

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    South African law of persons

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    'Persons 10'.ppt

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    This document discusses the status of children born to unmarried parents under South African law and the proof of paternity. There are presumptions of paternity for both married and unmarried women that can be rebutted with evidence. For unmarried women, the Children's Act departs from the usual balance of probabilities standard and requires evidence that raises a reasonable doubt. Blood and tissue tests are among the ways presumptions can be rebutted, and courts have powers to compel testing to resolve paternity issues, though case law is still developing on this point.

    Copyright:

    Attribution Non-Commercial (BY-NC)
    Download as PPT, PDF, TXT or read online from Scribd
    Download as ppt, pdf, or txt
    80 views9 pages

    Persons 10

    Uploaded by

    Rodney Ulyate
    This document discusses the status of children born to unmarried parents under South African law and the proof of paternity. There are presumptions of paternity for both married and unmarried women that can be rebutted with evidence. For unmarried women, the Children's Act departs from the usual balance of probabilities standard and requires evidence that raises a reasonable doubt. Blood and tissue tests are among the ways presumptions can be rebutted, and courts have powers to compel testing to resolve paternity issues, though case law is still developing on this point.

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    Law of Persons 2011

    Lecture 10: Status of children born of unmarried parents (proof of paternity)

    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.

    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 extramarital:

    Pater presumption: Case law


    F v L:
    The court correctly applied the pater rule, 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.

    Proof of Paternity: unmarried woman


    Prior to the Child Status Act: If the mother of the child named a particular man as the father, and he admitted, or it was proved, that he had sex with her at any time, he was presumed to be the father. Under the Child Status Act (s1): A man is presumed to be the father only if it is admitted or proved that he had sex with the mother at the time when the child could have been conceivedin the absence (NB!) of evidence to the contrary. Under Childrens Act (s 36)?

    The proof of paternity is similar to section 1 of the Childrens Status Act. The qualification, however, is different: in the absence of evidence to the contrary which raises a reasonable doubt.

    June 2009 examthink about how you would respond to this question to 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 section 36 of the Childrens Act 30 of 2005 departs from this standard and the problems it raises. (8 marks)

    Possible ways to rebut presumptions of paternity NB: These ways are applicable to both presumptions although it is arguable that s 36 changes the standard of proof for this evidence in respect of unmarried men:
    1. 2. 3. 4. Absence of sexual intercourse The gestation period Sterility The exceptio plurium concubentium: the plea (or defense) of several lovers. Physical features Contraceptives Blood and tissue tests

    5. 6. 7.

    Types of blood tests


    1. Oldest test: Analysis of red blood cells. This test will sometimes indicate that the man cannot be 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 DNA hereditary structures. This test, too, can positively identify the natural father. See Ex Parte Emmerson.

    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?

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