Dear Mrs Macaulay,

Can I take my husband and his mistress to court for paternity testing? The woman had a child when she and my husband were having an affair and she registered the child in his last name, but he claims that the child is not his. He didn’t sign the birth certificate. What are my rights as a wife?

You must remember that all that your husband told you are not facts but hearsay, some of which may indeed be true. You have also asked what your rights are as a wife. Do you know whether the birth certificate includes your husband’s name as the father and any further details about him as normally appear on the certificate?

I shall deal with your question about whether you can take both your husband and his mistress to court for a paternity test. The answer to this question is that pursuant to Section 10(c) of the Status to Children Act, it is provided that “any person who has a proper interest in the result, wishes to have it determined whether the relationship of father and child exists between two named persons, may apply… for a declaration of paternity, and if it is proved that the relationship exists, the court may make a declaration of paternity whether or not the father or the child or both of them are living or dead”.

This provision is generally that which mothers of children use to take the alleged fathers of their children to court to obtain declarations of paternity pursuant to which they can apply, it the declaration if made, for maintenance contributions for their child from the declared fathers. They can also base applications for custody, care and control of their children on such declarations.

In addition, they would assure for their children the right, without further proof, save for the production of an original or certified copy of the declaration of paternity, to share in the estates of their declared fathers after their death, and last but not least, the right to bear their fathers surnames and the birth records would be inscribed with the declared father’s particulars by the Registrar of Births and Deaths Office. The court has the power to order that a DNA test be done from specimens of your husband and of the child in a proper application for a declaration of paternity.

So the question is, are you a person who has a proper interest to apply to find out if your husband is indeed the father of the child? You really cannot take your husband AND his mistress to court for a declaration of paternity, unless it is so that she can be ordered to produce the child for a DNA test. The mistress can without question take him to court for a declaration of paternity, for instance if he refuses to contribute to the maintenance of the child or if she wishes to secure her legal custody and care and control of her child.

I recognise the fact that as the wife of the alleged father, you do have an interest in the paternity of this child because of the consequence, financial and otherwise, of your husband’s legal obligations as the named father. However, the court would have to be satisfied that you fall within the provision of the section I mentioned above.

All things being considered , if your husband really believes that the child is not his, as you said he has claimed, then he should be the one to apply to the court so that a DNA test can be done in order to set your mind at rest. In the situation in which he has placed you both, he owes you certainty to the question whether this child is in fact his or not. If he does nothing and his name does appear as the father and the child also bears his surname, legal obligations would continue to attach to him and to his estate even after his death. He must act and not leave you with the burden of obtaining the truth.

You have asked what your rights are as a wife but you have not specified against whom. You have a right to know the truth and your husband has the obligation to ensure that you do. It ought not to be left hanging as a sword over your marriage. He was unfaithful to you and breached his vows and a child came into being from his illicit relationship. He therefore has the responsibility to set your mind at rest and ensure that you know the real truth, so that you can properly consider your situation and decide on your course of action, forgiveness or otherwise. If he does not, in my view, it will adversely affect your marriage when you do not know for a fact if the child is his or not. You have the right to insist that he applies to the court so that you both can know the truth and discuss the matter, so that you can move on and continue with your marriage realistically by the removal of all doubt. He has the clear legal right to apply, as many other purported fathers do.

You do not have a course of action against the mistress, save that she would have to attend court in answer to an application about the paternity of her child, as I suggest your husband should file, as on the ordering that a DNA test be done, she would be directed where and when she should attend with her child for the child’s specimen to be obtained and the consequences of her failing to obey the terms of the order.

I hope that I have assisted you by clarifying the position for you and that your husband acts as he should and saves your marriage thereby and from the hard lesson he would have learned from the serious consequences which flowed from his unfaithfulness whereas faithfulness would give you both a peaceful and loving marriage.

All the very best.

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.