MCGREGOR
In order to fully appreciate the progress we have made, it is important to know where we are coming from.
UNTIL 1976, when the Status of Children Act was passed, children born out of wedlock were referred to as "bastards". They did not enjoy the same status as children born in wedlock in many respects, even in terms of the level of maintenance they could expect to receive. Even today, the 1881 Maintenance Act continues to distinguish between children born to married women and those born to unmarried women. A married woman has no obligation to maintain her child unless her husband has not fulfilled his obligation, but an unmarried woman has primary responsibility to do so. Moreover, the 1881 Act does not extend its reach to men who do not accept paternity - a group I will loosely refer to as "closet dads."
THE AFFILIATION ACT
Closet dads were the subject of the old Bastardy Law, which was replaced by the Affiliation Act in 1969. A closet dad may be ordered to maintain his child if a Resident Magistrate adjudges him to be the "putative father." The amount he is required to pay will be such weekly sum to maintain and educate the child as his means and the circumstances of the case warrant. This is referred to as an "affiliation order."
The Affiliation Act allows a single woman, who is pregnant or has a child who is less than 12 months old, to make an application for an affiliation order. The application may be made when the child is older, but only if there is proof that the closet dad had paid money towards maintaining the child within 12 months after the birth of that child. The process requires that the single woman lodge a complaint at the Resident Magistrate's Court for a summons to be issued to the closet dad. Her allegation must be supported by evidence on affidavit, which must be corroborated.
One example of corroborating evidence is the result of blood tests, which the mother, closet dad and child may be directed to take, pursuant to the Status of Children Act. The result will support the application if it shows that the closet dad is not excluded from being the father of the child.
An affiliation order can remain in force until the child reaches 16 years of age, but may be extended to the age of 21 if the child is engaged in a course of education or training.
MAINTENANCE AND AFFILIATION ACTS
The Affiliation Act will be repealed. Under the 2005 Maintenance Act both parents are equally obligated to maintain their children, and included in the definition of parent is any person against whom a declaration of paternity has been made pursuant to section 10 of the Status of Children Act. In other words, a closet dad will not remain outside the reach of the Maintenance Act by refusing paternity, or if his name is not entered on the child's birth certificate.
The time is right to put the Affiliation Act behind us. There will be a fond farewell to the strict time limit for the making of applications for affiliation orders. In its place, the Status of Children Act will be amended to allow for applications for declaration of paternity to be made before or after the birth of the child, without any age limitations. This application may be made by the mother, the child or an interested person.
The repeal of the Affiliation Act has not excited as much interest or debate as the maintenance of spouses, and you can now understand why - the move is welcome.
Sherry-Ann McGregor is an attorney-at-law and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback to lawsofeve@yahoo.com.
