No more “outside child”

The recent recognition of cohabiting partners in the succession landscape via the Smith v Selby decision, brings to mind another “relative” that we may or may not acknowledge while our parents are alive but unsheathe the talons the moment they close their eyes. The reference is to the person Barbadians commonly refer to as the “outside child.”

It’s amazing how many people don’t seem to know that the law has ceased to make any such distinction for upwards of 30 years now. It can be singularly entertaining and mind-boggling when having to advise people that the eldest “lawful” son no longer inherits everything, or that the children from your father’s other family also get a share of his estate.

On the 1st January 1980 via the Status of Children Reform Act, Cap. 220, all children became equal. Section 3 essentially legitimized all children in this island whether born before or after that date by providing that “the distinction at common law between the status of children born within or outside of marriage is abolished and all children shall…be of equal status…”

The Family Law Act Cap. 214 followed in 1982 and gave equal status to the unions of persons who cohabited for five years but had simply not tied the knot. Since marriage was no longer to be the determining factor in whether a child could claim a particular individual as his father, a number of legal constructs referred to in law as “presumptions” were created to ascribe paternity.

Section 7 of the Act generally provides that a male person may be recognized in law to be the father of a child where (1) he is married to the mother at the time of the birth; (2) he was cohabiting with the mother at the time of the birth and the child is born within 280 days after the end of the relationship; (3)a court determines that he is the father; (4) he affirms that he is the father whether by swearing an affidavit or signing a deed to that effect jointly with the mother, declaring paternity when the birth is registered or where he has “by his conduct implicitly and consistently acknowledged that he is the father of the child.”

Presumptions can always be displaced by cold hard facts. The standard for such displacement is on a balance of probabilities or, in other words, whether in the circumstances it is more likely than not that the individual will hear the voice of Maury Povich saying “you are not the father”.

Generally, a person requires “locus standi” (standing) to bring a matter before the court. However, the law is concerned first and foremost with the welfare of the child and as such, Section 9 makes it possible for “any person having an interest in a child” to apply to the court for a declaration as to paternity.

In the “dark ages” of court proceedings, paternity was determined by using either the highly fallible blood test (which only disproves paternity but cannot indicate which particular individual is the father) or the even more fallible court trial where all and sundry were treated to the sordid details of the relationship or lack thereof and the mother’s general sexual reputation.

The advent of DNA testing has changed the way in which such matters are handled, and might I add for the better, since such testing puts it beyond reasonable doubt whether or not a particular male is the father of the child in issue.

ALL children are equally entitled whether they were known of, or liked, and whether they came before, during, or after your father’s marriage to your mother. Statutory legitimization leads to being counted as a beneficiary in the case of intestate succession and it not likely that someone will give that up to spare your feelings or your mother’s embarrassment. In any event, a generation has passed since the advent of this Act and by now this should be basic and commonplace knowledge.

Source: (Alicia Archer is an attorney-at-law in private practice)

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