Q&A – 3 January 2022
Paternity of child born 260 days after divorce
My former wife has petitioned the Court for payment of maintenance cost of a child born 260 days after we divorced. She claims to have conceived before I petitioned the Court for divorce and that I am the biological father which I dispute because I stopped consummating the marriage two months before I petitioned the Court for divorce. Is it fair for me to maintain a child born 260 days after the dissolution of marriage? If I maintain the child, will the child claim inheritance from my estate?
AL, Dar es Salaam
There is a rebuttable presumption under section 121 of the Evidence Act [Cap.6 R.E 2019] that if there was a valid marriage and a child is born within 280 days after the dissolution of marriage, the divorced man is deemed to be the biological father of the child until it is proved to the contrary. A mother of the child can petition a Juvenile Court under the Law of the Child Act [Cap.13 R.E 2019] and the Law of the Child (Juvenile Court Procedure) Rules, 2016 (GN No.182 of 2016) for a maintenance order of the child against a former husband she believes to be the biological father of the child.
Section 43(1) of the Law of the Child Act allows a mother to apply to the Court for maintenance order before or after birth of the child. The mother can apply for maintenance of the child before the child is delivered or any time within 24 months from the date of birth of the child or at any time after the Court confirms the paternity of the child. She may also apply within 24 months after the person alleged to be the biological father of the child returns to Tanzania if he was outside Tanzania or at the time of birth of the child any time within 24 months after the alleged biological father refuses or neglects to pay maintenance cost if he was giving maintenance before the petition.
For the Court to grant a maintenance order, it has to be satisfied that the person alleged to be the biological father of the child is a true father of the child and the application for maintenance of the child has been made in good faith and not for the purpose of intimidation or extortion. Secondly, the Court has to be satisfied that the mother applying for maintenance order has, before she petitioned the Court, requested the man alleged to be the father of the child to maintain the child but he has refused or neglected or is providing inadequate maintenance cost. Child maintenance order should be the last resort where the father declines or refuses to contribute towards maintenance of the child despite request from the mother or the person who is in custody of the child.
The Court may on its motion or upon an application by a man disputing parenthood or the mother applying for maintenance cost make an order section 35(e), 36(1)(2)(3) of the Law of the Child Act and rule 61 of the Law of the Child (Juvenile Court Procedure) Rules, 2016 that DNA test be conducted in accordance with the Human DNA Regulations Act, 2009 for the purpose of proving if the man disputing paternity is the biological father of the child or not. The Court may order a medical practitioner to take a sample from the child and a man disputing paternity for the purpose of submitting the same to the Chief Government Laboratory Agency for DNA analysis to establish the parenthood. It is the responsibility of the person disputing the paternity to arrange with the medical practitioner for the purpose of taking and transmitting samples to the Chief Government Laboratory Agency for analysis. The Court can decide who bears the cost or the extent of sharing the cost of DNA test.
Once the Court declares a person alleged to be a biological father of the child, such father assumes the responsibility to the child in the same manner as may be in respect of a child born in wedlock or before the dissolution of marriage. The Court shall after resolving the issue of paternity in favour of the child, proceed to order the father to bear or contribute towards welfare and maintenance of the child by supplying him with necessities of survival and development.
Section 5(2), 10 and 36(4) of the Law of Child Act, gives a child the right to inherit the estate of his father whether or not he is born wedlock or after dissolution of marriage. Right to inherit the estate of the father flows naturally from being a biological child of the father and it is not dependent on the existence of a valid marriage between the two parents.
In deciding the rate of maintenance cost to be paid by the father, the Court considers the income and wealth of both parents of the child; other children depending on the same father and the cost of living in the area where the child resides among others. The Juvenile Court may order maintenance costs to be paid directly to the mother of the child or through the head of the social welfare department or through any person as the Court may specify in its order. The Court shall specify in its order the interval at which the maintenance cost shall be paid.
The maintenance order subsists until the child attains the age of 18 years or is gainfully employed or dies before attaining the age of 18 years. The Court may continue to enforce maintenance orders for a child who is above the age of 18 if the child is still pursuing education or training.
In view of the above and since you are disputing parenthood, it is wise to make an application for a DNA test to be conducted.