Can you take away the right to maintenance?
The right to maintenance is inalienable, meaning that it cannot be taken away, or given away. The Children’s Act, 2005 sets out four rights and responsibilities a person may have in respect to a child:
- To care for them
- To maintain contact with them
- To act as their guardian=
- To contribute to their maintenance
Does an unmarried father have these rights?
Yes. The unmarried biological father of the child acquires full rights and responsibilities (meaning all four of the above) if he was living with the mother in a permanent life-partnership when the child was born, if these three requirements are met:
- He consents to be identified or successfully applies to be identified as the child’s father or pays damages in terms of customary law;
- He contributes to the child’s upbringing for a reasonable period; and
- He contributes to the child’s expenses for a reasonable period.
If he doesn’t have those rights, must a father pay maintenance?
Yes. The Act is clear, in that none of the above affects the responsibility of a father to contribute toward the maintenance of the child. It is therefore possible that the father of a child is faced with a claim for maintenance while not necessarily having any rights to act as guardian to, caregiver for, or maintain contact with, the child.
Must you prove that he is the father of the Child?
If there is a dispute as to paternity, the parties may be required to undergo blood tests confirming paternity. However, the maintenance officer may only order that the parties undergo a paternity test if they consent.
Assumptions on paternity in the absence of a blood test
At the outset, parties must note that refusal to undergo a paternity test will have an impact on their credibility. However, the maintenance officer cannot force the parties to undergo a paternity test. The maintenance court has jurisdiction to determine paternity, and this is done on a balance of probabilities. If the alleged father engaged in sexual interourse with the mother at the time of conception, they are presumed to be the father in the absence of any evidence to the contrary, which evidence must raise a reasonable doubt as to paternity.
Can the court force a blood test?
If the alleged father will not consent to a blood test, he may rely on the defence of his right to bodily integrity. However,that right is not unassailable.
The guiding case law decided that the leading consideration was the best interests of the child. If it is in the best interests of the child for the knowledge of paternity to be established, the court may force the administration of a blood test, which is what the court did.
The father always has to pay maintenance, irrespective of his rights towards the child. If he is not the father, he does not have this obligation. Paternity tests can be used as evidence, but in the absence of this, the court will determine paternity based on certain assumptions.