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Proving parentage

Where a person alleges that the relationship of father and child exists between that person and another, that person may apply to the Court for a declaration of parentage. This is permitted under section 9 of the Family Relationships Act 1975 (SA).

Such a declaration may be necessary so that the person can be entitled to inherit under a deceased person’s will or the laws of intestacy (the laws where there is no valid Will) or to be able to make a claim on a deceased person’s estate.

The person must prove the relationship ‘to the satisfaction of the Court’.[i] What this means has been debated by the Courts over the years, but it is now recognised that this means the child must prove on the balance of probabilities, in other words – that it is more likely than not, that the relationship exists.[ii] It is now considered not necessary to prove the relationship according to the criminal standard of proof, that is, beyond all reasonable doubt.

All living persons whose interests may be affected by such a declaration, if it is practical, are required to have the opportunity to be heard on the matter.[iii]

A declaration of parentage can be made regardless of whether one or both of the persons have died.[iv] However, where one or both of those persons have died at the time of the proceedings, ‘credible corroborative evidence’ is also required.[v] This is required so as to add an ‘additional evidentiary burden or safeguard’.[vi] Corroborative evidence confirms, supports or strengthens evidence and makes the claim more probable.[vii]

It is also important to note that the Court has the power to direct a party to a court matter to submit to a biological test or to a direct a parent or guardian of a child whose paternity is in issue to have the child submit to such a test. This is permitted under rule 155 of the Supreme Court Civil Rules 2006 (SA). The biological test is one which may provide evidence form which an inference relevant to paternity can be drawn.[viii] Such tests are commonly known as DNA tests.

The Court has the ability to make these orders or directions so as to secure the administration of justice by allowing parties to have a proper opportunity of effectively proving their claims or defenses.[ix]

If you need to prove parentage in relation to a deceased estate or inheritance claim, contact one of our wills and estate lawyers to assist you.

[i] Family Relationships Act 1975 (SA) s 9(1)

[ii] H, AM v L, L [2013] SASC 7

[iii] Family Relationships Act 1975 (SA) s 9(3)

[iv] Family Relationships Act 1975 (SA) s 9(2)

[v] Family Relationships Act 1975 (SA) s 9(4)

[vi] H, AM v L, L [2013] SASC 7 [84]

[vii] Ibid [90]

[viii] Supreme Court Civil Rules 2006 (SA) r 155(2)

[ix] Johnson v Colangelo& Anor [2010] SASC 187 [12]

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