Family Law Cases
Paternity fraud is committed when a mother names a man to be the biological father of a child, for self-interest, when she knows or suspects that he is indeed not the biological father. It happens more often than many of us realise, a woman falls pregnant and is uncertain of who the real father of her child is. Whether she’s married and trying to conceal an affair, or she’d prefer the lover she sees as more reliable to father her child. But to lying about her child’s fatherhood can have a distressing impact on all parties involved. Years may pass, but when the truth comes out the consequences are life-changing.
The need to know one’s own human biological identity is as strong as the need to have your own family. In paternity fraud disputes, there are many potential victims: the non-biological father who pays erroneously maintenance, the child deprived of a relationship with his/her biological father, and the biological father who is deprived of his relationship with his child. Other victims include the child’s and the non-biological father’s families. In particular, financial hardship may have resulted for the non-biological father’s due to the maintenance and child support that he has to pay and his other children and spouse in cases in which the man was forced to make maintenance payments for another man’s child.
In a recent case in the UK a father was at the centre of a case of paternity fraud after he was tricked into raising another man’s child as his own for 6 years. In this case the Judge ruled that the man’s ex-wife could not be forced to hand back tens of thousands of pounds in maintenance payments even though they were the result of “fraud”. The man was cheated by his ex-wife, into believing that the baby she conceived through fertility treatment at a clinic in Spain was his child. In fact, the child, was the product of a sperm sample provided by her former boyfriend instead of one he had given. The judge in the case ruled that the man had been the victim of “clear deceit and fraud” and ordered his ex-wife to pay him £10,000 in damages for emotional harm, as well as refunding some housing expenses and paying legal bills – which came to about £100,000 in total. The court did not order her to pay back the £60,000 she received in child maintenance from the man after they separated – even though the court found she must always have known he was not the real father. Case law determined that child maintenance cannot be recovered in such cases. Crucially, the finding in his favour does nothing to bring back the son he once had.
In a recent case in the United States a woman found out that her twins had been fathered by two different men in a paternity case. The woman was applying for public assistance and named her romantic partner as the father of both children. In the course of her testimony in court, she admitted to sleeping with a different man about a week after she believed she had conceived the twins with her partner. This prompted a paternity test, which revealed that each man had fathered one of the twins. The original partner was then ordered to only pay child support for one of the children. This kind of occurrence is rare, but not unheard of a doctor who testified in the case gave evidence that 1 in 13,000 paternity cases for twins involve two different fathers.
Studies that was conducted in Australia has shown that between 10% and 16% of the general population are victims of paternity deceit. In Australia, mothers are being forced to pay back thousands of dollars to men they wrongly claimed fathered their children following a contentious reform of child support laws. The Australian face of paternity fraud is a Melbourne man named Liam Magill. In 2002, Magill’s ex-wife Meredith was ordered to pay him $70,000 for general damages and the economic loss he suffered as a consequence of her false declaration that he was, as one newspaper report put it, the biological father of “her lover’s children”.
In the UK, single mothers are deliberately naming the wrong man as the father of their children when making maintenance claims. Child Support Agency figures show that nearly 1 in 5 of the contested paternity claims it handled cleared the man originally named as the father. Its figures for 2007-2008 show that out of 3,474 DNA paternity tests ordered, 661 (19%) named the wrong man. Government-approved DNA testing kits, have exposed 4,854 false paternity claims since records began in 1998-99. A British survey conducted between 1988 and 1996 confirmed the 10% figure. A recent poll in the UK on a survey on attitudes to truth and relationships has found that 19 out of 20 women confess lying to their partners or husbands. 83% owned up to telling “big, life-changing lies,” with 13% saying they did so often. Half said that if they became pregnant by another man but wanted to stay with their partner, they would lie about the baby’s real father. 42% would lie about contraception in order to get pregnant, no matter the wishes of their partner.
In the United States it is alleged that almost 30% of DNA paternity tests, excluded the man as the father of the child in question. The exclusion rate however includes a number of factors. One is a woman may allege several men as possible fathers because she was sexually active with these individuals. These are not men who were misled into believing they were fathers and then later discover they are not. The testing merely sorts out which man is the biological father and excludes the others.
In 2012, a woman was arrested in KwaZulu Natal after a mother told a Durban regional court magistrate that she had handed over R65 000 to the woman who was a Facebook friend she had never met who was supposed to be helping her to manipulate a paternity test. The mother wanted the test to reflect her present boyfriend as the biological father of her six-month-old baby, not the real father who she considered “unstable”. The mother who pleaded guilty to attempted fraud and received a 3 year suspended sentence, testified that the woman had initially asked for R1 500 but, thereafter kept on demanding more money, not only for herself, but for “blackmailers” who wanted money for their silence and others including two magistrates who were said to be helping her. Sick of “living a lie” the mother then went to the police. The woman pleaded guilty to five charges of fraud, forgery, uttering, extortion and crimen injuria and was sentenced to 5 years imprisonment.
Issues regarding paternity have been dealt with in a number of cases in the South African Courts. The South African Children’s Act confirms in Section 36 a presumption in respect of a child born out of wedlock (parties who were not married to each other). The presumption is that the person whom had sexual intercourse with the mother at any time when that child could have been conceived will be presumed to be the biological father of the child in the absence of evidence to the contrary which raises reasonable doubt.
In 2010 in the case of YM v LB 2010 ZASCA 106 our Supreme Court of Appeal (SCA) was given an opportunity to provide judicial clarity on the law relating to court-ordered blood testing of potential parents refusing to voluntary submit themselves (and/or the minor child) to such testing, but the Court most unfortunately elected to side-step the issue based on the facts of the matter. It is not suggested that the court was wrong in its final decision, but it was hoped that it would provide guidelines as to this issue of compelling adults and children to undergo blood tests to determine paternity. In this case the court of first instance ordered the parents and child to undergo paternity testing, the decision of the court was then taken on appeal. The issue had been unclear for about 30 years and certainty regarding the obligation and power of the court to order such tests against the wishes of one of the parties would have been valuable. It was indeed a missed opportunity to clarify the law once and for all. The SCA found that where the paternity of the child has been shown on a balance of probabilities, scientific tests on a child should not be ordered. In this matter paternity was not really in dispute as both parties (at various times before the attorneys joined the show) believed that the man in question was the father of the child. The mother’s maternity was obviously never in doubt. The court also stated that as paternity is determined on a balance of probabilities, the man is not entitled to demand scientific proof and that in relevant instances, the court has the inherent power as upper guardian of all minor children to order such tests if it is in the best interests of the child. The SCA also noted that the rights of privacy and bodily integrity may be infringed if it is in the best interests of the child. However, it confirmed the statement made by a judge in an earlier case that it may not always be in an individual’s best interest to know the truth. The court noted that in some cases it may be justified to order tests, but that the discovery of the truth should not be generalized.
The basis of a paternity matter is that the applicant will have to show that such a test would be in the best interest of the child. This in itself is extremely difficult as there seems to be no research done in South Africa as to the impact on a child that learns, at a much later stage, that his/her presumed father was not the biological father. One may argue that paternity testing may have a negative short-term impact on the family as it may reveal relationships that were previously unknown. After all, it has been acknowledged that from a broader family perspective, family genes are considered to be a valued possession passed down in a family through succeeding generations.
Would it be better not to know the truth or to keep the truth from a child at any age and one wonders whether this is indeed in the interests of a child? In disputed paternity claims the emotional trauma of uncertainty definitely taints the relationships between the parents and sometimes also the relationships between the probable father and the child. Trauma such as this can be easily be resolved through testing.
Section 37 of our Children’s Act states that if a person in proceedings in which 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. The problem is that the section does not go far enough and does not resolve the main issue, namely the truth about the paternity of the child.
The unreported case of Nel v Jonker (WCHC) case number A653/2009 was the first reported judgment dealing specifically with misattributed paternity. The ex-husband had regarded the child, born four months into his marriage with the mother, as his biological child and had maintained her as such. Only 16 years after the birth, and 10 years after the divorce, did he discover through DNA testing that the child had actually been fathered by another man. The maintenance court varied the divorce order by deleting his (future) maintenance obligations towards the child since he was not the biological father of the child. The court of first instance subsequently awarded damages to the cuckolded ex-husband for the R50 000 that he paid towards the child’s maintenance since the divorce. This order was taken on appeal. On appeal the Judge overturned the damage award that the maintenance court granted to the ex-husband. The ex-husband argued that he supported the child in the bona fide and reasonable belief that it was due and payable. The Judge found that the ex-husband did not meet all the requirements of the claim, specifically, his error in paying maintenance was found to be unreasonable and that there was no proof that the mother of the child was enriched by the maintenance payments. In adding, the court noted that prescription could have reduced his claim, but as it was not pleaded it was not necessary to consider. With regard to considerations of public policy the court did not find it necessary to make a final decision in this regard. The reading of the case leaves one with a feeling of dissatisfaction because the set of facts was not ideal to deal with this complex issue, and partly because of the fact that the pleadings and evidence were deficient, making a precedential judgment on misattributed paternity impossible.
What is disturbing is the fact that it is impossible to accurately estimate just how widespread paternity fraud is. One may assume that there are a plethora of men in South Africa who are currently raising another man’s child, blissfully unaware of the devastating truth. For each of these men, the truth will only be revealed if the woman who duped them decides to confess, or for some reason, a paternity test is taken. Looking at jurisdictions around the world, there are various ways to deal with the question of refunding of the maintenance payments. On the one side of the scale certain jurisdictions by legislation deny such an action mostly on the best interests of the child. It has also been argued that where a man accepts fatherhood, he cannot recant his fatherhood merely based on the fact that he is not the biological father – fatherhood after all comprehends much more than just biology. In other jurisdictions legislation and the courts provide for a re-claim of maintenance contributions. Which side of the scale South African courts will lean towards in future remains to be seen.
A last question that can be asked is whether the mother of a child can be prosecuted for the crime of (paternity) fraud or whether public policy should exclude this possibility? Fact is that it remains fraud and such actions should be prosecuted. The scenario is becoming more common around the world and also in South Africa. With DNA tests becoming cheaper and more available, the courts or the legislature will have to deal with this problem soon.
Cases and Articles on Divorce Law and Family Law in the SA courts.
Legal news and case law in the South African courts, compiled by Family Law attorney, Bertus Preller.
Bertus Preller is a Family Law and Divorce Law Attorney in Cape Town.