establishing parenthood under the family law
The absence of modern medical technology for paternity testing necessitated common law to develop presumptions with respect to the legitimacy or illegitimacy of children. One such presumption under common law is that a child is deemed to be legitimate if the child’s mother was married either at the time of conception or at the time of birth. The presumption does not apply if the couple had a judicial separation. The presumption can be rebutted by evidence proving sterility or that the mother had an affair.
The passage of laws provided more concrete basis in resolving the issue of legitimacy. For instance, Section 89 of the Marriage Act 1961 provides that an illegitimate child is legitimated from the time of his birth upon the subsequent marriage of the child’s parents. Section 91 of the same Act provides that children of a void marriage are considered as legitimate children despite the marriage being void.
The Family Law Act which deals with issues involving children applies equally to nuptial and ex-nuptial children. The correct term to be used is ex-nuptial children to refer to those born out of wedlock, instead of the term illegitimate. All States and Territories except Western Australia have enacted laws for the equality of status between nuptial and ex-nuptial children.
Another way of establishing parentage, aside from applying presumptions of parentage, is to provide actual evidence that will rebut the statutory presumptions of parentage. Evidence based proof is particularly useful where no presumptions arise and one of the evidence that is being used today is DNA testing. DNA testing not excludes a person as a parent but can also conclusively establish that a person is a parent.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.