Today, August 6, marks the 32nd anniversary of the passing of the Status of Children Act 1976. At the time, this Act abolished the distinction between children born in or out of wedlock. From that date onward, children born out of wedlock had the same status and priveleges as children born of married parents. The Act also made provision for blood tests to establish paternity.
The Maintenance Act, 2005 has repealed the Affiliation Act which since 1926 had provided for the determination of fatherhood and the maintenance of children where the parents are not married to each other. The situation now is that whether a child is of a single woman or not, it does not matter so far as the determination of paternity is concerned. In respect of maintenance, every parent has an obligation to maintain his or her unmarried child who is under the age of eighteen years, OR is in need of such maintenance, by reason of physical, or mental infirmity or disability.
Every grandparent has a similar obligation in respect of the grandparent’s unmarried grandchild, in the event of the grandchild’s parents failing to maintain the child due to death, physical or mental infirmity or disability of the parents. This is so to the extent that the grandparent is capable of so doing.
This legislation is clearly aimed at ensuring that parents and grandparents take responsibility for their children and grandchildren who are under eighteen; and also for those who are over eighteen but are suffering from a disability.
So, grandparents must never believe that they are ever off the hook or out of the picture, in respect of maintenance.
Great grandparents, though, have been given a break as this law ignores them.
This law, first enacted in 1976, made all children equal in status, irrespective of whether their parents are or have been married to each other. It gave rise to the popular 1970s song which said, “no bastards no deh again”.
The law provides that where in civil proceedings, it becomes necessary to determine the paternity of any person, the court may on the application of a party to the proceedings direct that blood tests be used to determine whether a party to the proceedings is or is not excluded from being the father of the subject.
If for the purpose of giving effect to the court’s direction, a person were to impersonate another, or puts forward a child knowing that the child is not the child that the court has given the direction about, that person may be charged and tried in a Resident Magistrate’s Court for the impersonation. If convicted, the individual may be sentenced to a term of imprisonment not exceeding twelve months. However, if the Resident Magistrate wishes to impose a fine, the maximum fine is five hundred dollars. Strange isn’t it…this question of the fine?
The Affiliation Act was enacted on the 26th April, 1926, that is, 82 years ago. It deals with the determination of fatherhood, and provides for the maintenance, of children where the parents are not married to each other. It has some interesting provisions.
Section 3 of the Act states that a single woman, who is “with child” or who has been delivered of a child, may:
- either before the birth of the child, or at any time within twelve months from the birth of the child
swear to a complaint in the Resident Magistrate’s Court or Family Court with a view to the Court formally naming the father of the child.
If the woman misses this specified deadline, she may still, at any time after the expiration of the twelve month period, swear to the complaint if she is able to prove that the alleged father has within twelve months of the birth of the child paid money for the maintenance of the child, or has contributed to the child’s support.
Note that the person filing the complaint has to be a single woman. Of course, the man is sometimes a married man.
The hearing for the determination of fatherhood takes place before a Resident Magistrate. The evidence of the woman is taken as also any witness whom she calls. The alleged father’s evidence is then taken. If the woman’s evidence is corroborated to the satisfaction of the Resident Magistrate, the latter may adjudge the man to be the putative father of the child.
Incidentally, it is presumed under our law that a married man is the father of any child that his wife gives birth to during the existence of the marriage. The presumption may be rebutted in certain limited circumstances.
Note: The Affiliation Act was repealed by the Maintenance Act, 2005