S V T 1988 (2) ZLR 103 (SC) S V T 1988 (2) ZLR 103 (SC)

S v T 1988 (2) ZLR 103 (SC)

Flynote

Family law - paternity - presumptions in respect of - presumption against illegitimacy - rebuttable D on balance of probabilities - presumption of fatherhood where intercourse admitted - onus on alleged father to rebut paternity.

Headnote

The respondent was married to one X. She and X were estranged, and during the period of estrangement, she had an affair with the appellant. This affair came to an end when she discovered that he was married to another woman. Towards the end of her period of association with the appellant, the respondent and her former husband effected a reconciliation and the two resumed marital relations. Some months later a child was born to the respondent. The child was carried to full term. Had it been fathered by the respondent's husband, its birth date would have made it eight weeks premature. However, in respect of the respondent's association with the appellant, the birth date corresponded with a full term child. Apart from the coincidence as to dates, the child was found to have a strong resemblance to the appellant. The appellant, though denying paternity, admitted intercourse during the relevant period. The respondent obtained an order that the appellant pay maintenance in respect of the child and against this order an appeal was brought.

Held, that in this case there were two competing presumptions of law. The first was that against illegitimacy, that is, a presumption that the husband is father of any children born to the wife during the subsistence of the marriage. There is no requirement that the woman seeking to rebut this presumption be corroborated; the standard of proof required is that which is acceptable in all civil cases, a preponderance of probabilities. Even weak evidence against legitimacy must prevail if there is no other evidence to counterbalance it. Here, the evidence regarding the date of birth and the fact that the child was carried to full term tended to show that it was more probable than not that the child was not the offspring of the respondent's marriage. The second presumption is that if a man admits intercourse he is presumed to be father of the child born thereafter. The onus is on him to show that he could not possibly be the father; and the appellant had failed to discharge this onus.