Demanding equal rights and treatment of husbands/partners in paternity disputes: A South African perspective

Abstract

The legitimacy presumption poses a threat to the equality of parties in a marriage/partnership in today's constitutional society. The approach adopted by courts in paternity disputes reveals an ongoing inequality in marriages/partnerships. The marriage/partnership is being used by courts to prevent a husband/partner from introducing a paternity claim on the assumption that doing so is not in the best interests of the child. Courts should be cautious in using children as a mechanism for preventing a husband/partner from determining their biological relationship. The child's best interests can only be advanced if children know his biological identity. Husband/partner must have the right to know their biological relationship to their wives/partner's children. A husbands/partners' right to assert his paternity claims, on a balance of probabilities and on an equal basis is an inherent right to dignity.