A court yesterday dismissed a paternity suit brought by a man who claimed to be the father of a child born to a married woman after finding that the man had not produced enough evidence to overturn the civil status that the child had through his birth certificate.
The judgement was delivered by Mr Justice Robert G Mangion in the Family Court.
The court heard that the man, AB, was claiming to be the father of a child born to XY while the latter was married to another man. The child's birth certificate showed that he was born in a marriage and had the status of a legitimate child. But AB told the court that he had had an adulterous relationship with XY and that the DNA testing which he had secretly carried out without the mother's knowledge showed that the child was in fact his and not the offspring of XY's husband.
In yesterday's judgement the court pointed out that the Civil Code provided that the filiation of a child born in wedlock could be contested if it could be proven that the mother had committed adultery in a period before the child's birth and if genetic testing proved that the child was not that of the mother's husband. But another section of the Code, namely section 81, provided that no one could contest the legitimate status of a child born in marriage.
This, said the court, meant that a no one, not even the child itself, could contest the status of a child born in a marriage and who possessed the status of a legitimate child. The law itself stated that the status of a legitimate child was established through a series of facts, namely that the child had always born the surname of his or her mother's husband, that the husband had always treated the child as being his own and had maintained and educated the child. Other facts that had to be proven were that the child was always known to third parties as being the offspring of his mother's husband and that the whole family considered him to be the father's child.
In this particular case the court had therefore to establish whether these facts had been proven.
The court heard that AB had had an adulterous relationship with XY while she was married and that he had suspected that the child that she had was in fact his and not her husband's. AB and XY kept up some contact after their affair was over, and he had managed to obtain a DNA sample from the child without the mother's knowledge. This sample showed that AB was the child's biological father.
But XY's husband told the court that he had brought up the child as his own and had acknowledged paternity. The husband added that even after his wife had confessed to him about her affair with AB he had still considered the child to be his own and had maintained him and educated him. All the family considered the child to be the husband's offspring.
Mr Justice Mangion added that local case law had established that the purpose of section 81 of the Civil Code was not to deprive a child of legitimate status and also not to deprive the child of the family in which he or she had been raised.
AB had not brought enough evidence to shake the legal presumption of legitimate status, for the crucial evidence was not whether AB was the biological father but whether the child had been raised as a legitimate child and enjoyed that status.
AB's action was therefore dismissed.