Does my husband take my child/children after marriage?
The question has been posed whether or not our spouse takes on our child born prior to our union.
The question has increased significance if the parties are divorcing and those are questions that must be addressed in the petition.
In order to establish who is a "child of the family", we must first look to section 2 of the Matrimonial Causes Act, under the Interpretation section which defines:
"relevant child means a child who is:
(a) a child of both parties to the marriage in question; or
(b) a child of one party to the marriage who has been accepted as one of the family by the other party ...".
The term is also used in the more recent legislation of the 2005 Maintenance Act, where the term is used in section 8(3)(c) which states:
"(3) For the purposes of this act, a person is the parent of the child if:
(c) the person is a party to a marriage or cohabitation and accepts as one of the family a child of the other party to the marriage or cohabitation.".
It is submitted that the key word is acceptance, since our act still maintains and uses the word 'accepted', while the English Act uses the word 'treated'. There is a fundamental difference between these two words, and when one looks at the Concise Oxford Dictionary's definition of the word 'accept' means:
"1. consent to receive (something offered).
2. regard favourably or with approval.
3. believe to be valid or correct
4. take on (a responsibility or liability); tolerate or submit to."
While the word 'treated' means:
"behave towards or deal with in a certain way."
Most of the 'acceptance' authorities seem to point to that "... in law there cannot be an acceptance of children into the family unless both parties agree".
The foregoing is highlighted in the case of Dixon v Dixon where it was held that there could not be acceptance of a child of the family without some mutual arrangement between the spouses and that mutual arrangement must be an arrangement that the child should be treated by both spouses as the child of both.
This case poses a fundamental question that any court will ask itself when faced with the question of acceptance of any child as a child of the family which is "... did the parties have a mutual arrangement ...".
In two decisions of our Supreme Court, the court sought to embrace the importance of mutual arrangement to demonstrate acceptance of the child in the family. Further, it laid done two important principles for consideration:
1) The onus of proof falls to the parent alleging acceptance.
2) The role of the natural/biological parent.
What the findings of the court should indicate to us is that it is important to have the discussions with our spouses about whether their children or ours will be accepted as children of our family.
Deborah Dowding is an attorney-at-law with the firm Nunes, Scholefield, DeLeon& Co. Send feedback and questions to firstname.lastname@example.org or email@example.com.