Husband doesn't wish for wife's child from affair to bear his name

All Woman

Dear Mrs Macaulay,

My wife cheated and got pregnant. I cannot afford a divorce right now, and I'm also overseas, and so her child will be born while we are still married. I do not want any presumption that I am the father, which I know is a legal possibility. How do I ensure that my details are not entered into this child's birth records? My wife says that the other man is not in any kind of position to take on his parental responsibilities. While I have nothing against the child, I do not want any possibility that the child will have any rights of claim to my estate, like my other children.

You have written of the very thoughtless and unfortunate action of your wife in having sexual relations with another man, with the consequence that she is now carrying his child.

This, as you understandably and sadly concluded, has destroyed the fabric of your marriage and you are contemplating divorce as the only option you wish to take. You say that you cannot afford to proceed with a divorce at this time and that you are also abroad. The latter fact of being abroad is not a bar to divorce proceedings being instituted as a divorce can be obtained without you having to attend court in person. You can apply for divorce proceedings to be done in default of appearance and it will then proceed by the filing of the necessary documents in the Supreme Court. But that is a matter for the future, as a petition for dissolution of a marriage can only be done after the marriage has broken down irretrievably and the parties have lived separate and apart for a period of 12 months before the date the petition for dissolution of the marriage is filed.

You and your wife really ought to have some counselling so that you can be absolutely assured that you are making the correct decision to terminate your marriage. I say this, as you will have to state whether you had any counselling on your divorce petition, and especially as you say that you have nothing against the child. Even though you are overseas, counselling can still be done — in this day and age all types of online facilities and services are available. Do consider the possibility of counselling for you and your wife, who I am sure deeply regrets her mis-step especially as the father of the child she is carrying is not in a position to meet his parental obligations.

You have stated that you do not wish any presumption that you are the father of the child, which you know is a legal possibility to be made. You have referred to the presumption as a possibility, and you are right.

The matter is dealt with in section 6 of the Status of Children Act. It is provided in section 6(1) that subject to subsections (2) and (3) that a child born to a woman during her marriage, or within 10 months after the marriage has been dissolved by death or otherwise (divorce), in the absence of evidence to the contrary, shall be presumed to be the child of its mother and her husband or former husband — whichever is the case..

So this means that you must find a way to ensure that your evidence that you are not the father of the child is given to the chief resident officer of the public hospital where the birth occurs, or the person in charge at the private hospital, as they are legally obligated under the Registration (Births and Deaths) Act to send the registrar a certificate in the prescribed form of the particulars needed for the child's birth to be duly registered. You could do this by submitting a sworn declaration of the circumstances of the conception of the child in your absence, stating your dates of departure and the fact that you never returned and are in fact still abroad. You should also add that your wife admitted the facts of her infidelity with the other man (name him) and the consequential pregnancy to you, and that your marriage is irretrievably broken down as a result. This is one way.

Your facts do not put you within the provisions of subsection (2) of the Act, as you and your wife were not living apart under an oral or written separation agreement or a decree or order of separation or had a decree nisi of divorce made by a competent Jamaican authority or court or of some other country. Subsection (3) also does not apply to you and your wife's circumstances at all as it contemplates her having remarried, even if the birth occurred within 10 months after the marriage had been dissolved by death or otherwise.

Another way to act is that you can have your wife, when she gives the officer the information necessary for recording the birth, give the correct particulars of the biological father, and not yours. I think she can be convinced to do this as it is her action which created the necessity and destroyed the fabric of the marriage. She also owes it to the child to have its real father's name and particulars. It matters not that he cannot act on the fact of his fatherhood; it is in the child's best interests to have his/her antecedents clear from birth.

Or, if you cannot do either of these and the child is registered as yours on the presumption, you can have a DNA test done and apply for the birth records to be rectified by your name and particulars being removed from the child's birth records. This application can also be made in the course of your divorce proceedings. I do not advise this later course as, in my view, this is not fair to the child. It is much better for the matter to be dealt with truthfully at the time your wife reports the particulars of birth and gives all relevant information to the relevant officer at the institution where the child is born.

I hope that you and your wife can resolve this in the best way possible for primarily the child's best interests and that the child is given its rightful name from birth.

I hope also that I have clarified the position for you and you can now consider the situation properly and make the best decision for you all.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.

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