Dear Mrs Macaulay,
My partner has just separated from his wife. They have three kids who bear his last name. However, he recently found out that the youngest one isn't his. His name is on the birth certificate. What can he do? Can he get her charged or fined?
Before I deal with the contents of your letter, I must clarify one point. You have described the just separated married man as 'my partner'. Well, he cannot be nor is he yet in any way 'your partner'. He is a married man and so he cannot be anyone's 'partner' until he becomes an unmarried man, in other words 'single'. You may have been his paramour if you and he had your relationship before he separated from his wife, and now you are his lover or companion or friend.
I have dealt with this so that you understand that despite the length of time you and he remain in your relationship, which you choose to describe as a partnership, you cannot and will not qualify as a 'spouse' in a common-law relationship, which, I am sure you know, is recognised in law. A relationship as a common-law spouse would entitle you to the rights of one, but as long as he remains a married man, though separated, you have no rights as a spouse.
You have not said how he found out the child wasn't his. Was it by rumour, in that someone told him so? Was it as a result of a DNA test? Was it a legally ordered test? Was it a test done with the agreement of his wife? Did his wife say so in the midst of a quarrel? Is it really a fact?
In law, under the Status of Children Act, all the children of a married woman are presumed to be the children of her husband, so of course he would be on the birth certificates of the children his wife bore during the life of their marriage. The presumption gives a 10-month period from the death of the husband or from the date of them living apart as a result of an agreement of separation, or under an order of separation (this could be pursuant to the Domestic Violence Act), or upon the grant of a decree nisi of divorce made by the Supreme Court of Jamaica or by a competent court of another country.
If this man wishes to do anything about what you allege about his youngest child, then he would have to rebut the presumption of his paternity by applying under Section 10 (c) of the Status of Children Act to the Family Court or the Supreme Court for the court to decide and declare whether or not there is a relationship of father and child between them.
For such a determination to be made, a DNA test is normally ordered to be done for which he, as the person questioning the status quo, would have to pay the cost. You have not stated how old this youngest child is, because if your allegation is true, I hope the child is still very young and so will not be unduly impacted by his or her 'father' turning out not to be so.
Anyway, that is a decision for him to take. If it is proved that he is not the father, then the entry in the birth certificate would be rectified.
You ask whether he can have his wife charged or fined. He cannot, because she being a married woman is protected by a legal presumption. Please leave this man to do what he should for his children without any interference from you, and remember that you do not have any recognised status based on your relationship with him in fact or in law. Let him decide what he will do as he must live with himself and his conscience at the end of each day or of his life.
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.
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.