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Q and A with Megan Harrington-Johnson (Attorney)

Question:   My boyfriend and I have a child together. He is not part of our life and is actually denying paternity. I would like to claim maintenance. How would I go about to do this?

Claiming Child Maintenance from Unmarried, Recalcitrant Father.

The procedures to be followed in instituting a complaint for child maintenance are regulated by the Maintenance Act 99 of 1998. In this regard, your first step would be to approach the local Maintenance Court which has jurisdiction over the area in which the child resides.

It does not matter that your child was born out of wedlock as it is settled law today that the ordinary rules relating to a parent’s duty to support his or her child apply in respect of a child born out of wedlock. Thus both parents have a duty of support and there is no difference in scale. Both are thus responsible for maintenance according to their means.

As the child was born out of wedlock though you will however have to prove paternity of your child this is because, when hearing maintenance cases, the first question a court must determine is whether a person is indeed liable to pay the required maintenance. The Maintenance Court has the jurisdiction to determine paternity and this is proved on a balance of probabilities. (For example, if the mother was 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, the presumptions contained in Section 36 and Section 37  of the Children’s Act (“the Act”) come into play.

Section 36 of the 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 evidence to the contrary that raises a reasonable doubt, presumed to be the biological father of the child.

Section 37 of the Act states that if a person in proceedings in which the paternity of a child is challenged refuses to submit him/herself, or the child, to take blood samples in order to carry out a scientific test to prove the paternity of the child, then a presumption in our law exists in which the failure of such a party to agree to such a test may be used as evidence to prove the contrary. The effect of this section is that it compels a court to warn the person who has refused to have his/her or the child’s blood sample taken ‘of the effect’ which such refusal might have on his/her credibility.

Once you have succeeded in proving paternity, the Maintenance Court will do an enquiry into the needs of your child and the ability of both yourself and the child’s father to contribute to same, pro rata, in accordance with your respective earnings. This will only be done once you have both made accurate disclosure to the Court regarding your income and expenses by providing your salary slips and bank statements.

The Court will then make an Order which can be enforced against the father.

Question 2 : I am recently divorced. My ex is an alcoholic and I don’t want our children to be alone with him. How does supervised contact work?

In terms of the Children’s Act 38 of 2005 (“the Act”), parents who are married when a child is born each acquire joint parental rights and responsibilities in respect of that child and such rights and responsibilities cannot be taken away without a formal application to court.

This being said, contact to minor children is always exercised having regard to the best interests of that particular minor child in those particular circumstances.

As such, should you believe that your husband’s drinking is a danger to the children’s wellbeing, you may bring an application to court, either a Children’s Court or the High Court, for such supervised contact to be implemented. This supervision will generally be done by an independent third party such as a psychologist or social worker. The courts will however not order this lightly, and it is likely that the Office of the Family Advocate will be requested to investigate whether or not such supervision is in fact necessary.

Megan Harrington-Johnson

Partner

Schindlers Attorneys, Notaries & Conveyancers

2ND FLOOR, 3 MELROSE BOULEVARD, MELROSE ARCH, JOHANNESBURG

www.schindlers.co.za

Tel: +27(11) 448-9600

 

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