Is the presumption of paternity still sustainable?

TAKUNDA GOMBIRO AND FUNGAI CHIMWAMUROMBE

At law, there exists a long-standing common law presumption that children born within wedlock are sired by the parties to the marriage.

The presumption rests on the moral belief that marriage confines intimacy exclusively to the spouses.

Yet, as morally hopeful as this assumption may be, reality often proves otherwise. Fidelity is not always guaranteed, and courts are frequently confronted with disputes over paternity.

In practice, the presumption of paternity goes even further than proving wedlock.

The moment a female approaches a court indicating that a specified male is the father of a minor, the court gives them the benefit of the doubt, if sexual relations are confirmed to have taken place between the two.

The onus of proving that the said minor child has no paternal ties to the male shifts to he who denies paternity.

Only when they present satisfactory evidence of the lack of paternal ties, will the court then remove the legal obligation to maintain the said minor child.

The Maintenance Act provides for the framework under which a maintenance officer is to make a maintenance order. Section 6 (2) (b) of the said act disempowers the Maintenance officer to make a maintenance order, without satisfying themselves that the person against whom the order will operate has a legal duty to maintain the dependant. The only problem as stated above is that such legal duty can arise out of presumption.

We contend that an onerous obligation of maintaining a child financially and a moral expectation to groom a child cannot and should not arise out of presumption.

Where there are necessary tools to establish the biological identity and relationship between a parent and a child, such tools must be taken advantage of.

The societal probity must also be questioned regarding the stance on males that are raising children that are not theirs under the mistaken belief that they are the biological fathers. Law makers must also consider the possibility of amending the criminal code and attributing the essential elements of the crime of Fraud to scenarios where women knowingly abuse the presumption of paternity to hoodwink males.

There have been growing discussions around the need for D.N.A tests to be made mandatory upon the birth of every child, specifically where there is a specified male indicated to be the father.

We believe this is an area that requires serious consideration by law makers to curb an important societal issue that has perpetual and recurring effect.

The framework for the adoption for mandatory testing will have to be well crafted to minimise the possibility of fraud and to have the necessary infrastructure to accomodate the marginalised areas within the country.

What are your thoughts.

Takunda Gombiro  is the Managing Partner at Zenas Legal Practice.

Fungai Chimwamurombe is a registered legal practitioner and Senior Partner at Chimwamurombe Legal Practice and can be contacted through email fungai@zenaslegalpractice.com.