Sun | Apr 19, 2015

When a married woman's child is not her husband's

Published:Monday | September 6, 2010
Sherry-Ann McGregor - Contributed

The situation suggested by this topic usually refers to men, as it is common to hear that a man has fathered a child who was not born to his wife.

However, situations in which married women give birth to children who are not fathered by their husbands are becoming more prevalent today.

In many instances, the husband is unaware of the fact that the child is not his, while the biological father is well aware that he has allowed another child to be passed-off as another man's child, but is willing to live with that fact ... at least for a while. In some cases, however, the child is conceived while the married couple is separated and the biological father is involved in a bona fide relationship with the mother.

It is that latter situation, which this article will address, and the legal implication for the parties involved. Here are the points which are worthwhile considering:

  1.  When a child is born to a married woman, two common inferences are drawn; namely, that the child's father is her husband and that the child's surname will be the same as the husband's.
  2. These are only presumptions, and statements that the facts are otherwise can clear them up. In fact, provided the biological father acknowledges that he is the father of the child, his name can be inserted in the register as the father.
  3. In relation to the surname, a child can be given any surname. That is to say, it may be that of the husband, the biological father, or any other name, including a combination of the mother's and father's surnames.
  4.  According to the Maintenance Act, parents are obligated to maintain their children. The prima facie proof of parentage is the presence of the father's name on the birth certificate. If the biological father's name is not on the child's birth certificate, until there has been a declaration of paternity, he will not be deemed to be legally obligated to maintain the child.
  5.  If the husband accepted the child as his own, and supported that child, he may be ordered by the court to continue to maintain the child because the child would have become 'a child of the family'. (It should be noted that the person declared to be the biological father would also be the responsible for maintaining that child.)
  6.  If the married woman is eventually a party to an application for divorce (whether she commences those proceedings or not), the fact that a child was born during the marriage as a result of a union between her and another man will have to be stated in the Petition for Dissolution of Marriage. In fact, where information regarding the arrangements for the care of that child are available, that information will also need to be stated.

This list is by no means exhaustive; and I welcome further suggestions as a child's ability to identify with a family unit by name and physical features all impact of his/her welfare.

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com or lifestyle@gleanerjm.com.