When the Genes Do not Fit: Towards A Legal Framework for Addressing Paternity Fraud
58 Pages Posted: 1 Oct 2020 Last revised: 28 Jan 2021
Date Written: December 16, 2019
The common law views marriages and parental rights over children as a private economic relationship anchored in a civil contract. Contemporary family law abandoned the parental rights scheme grounded in Natural law justifications in favour of the Positivist parental responsibility scheme advocated for by John Locke. Even in this new legal conception of the status of being a parent, establishing the paternity of a child remains just as important as it was under the common law parental rights scheme since it is in the best interests of a child to know who his/her biological father is. Since the legal conception of fatherhood remains an obligation to pay for the upkeep of their biological children, the rebuttable presumption of legitimacy evolved to protect married men from the indignity of being misled into assuming parental rights for children who were the result of their wives adultery. For the study, a mixed-method research approach was used by combining black letter research and a systematic review to conduct a comparative analysis of case laws, legal commentaries, and procedures involving the application of the tort of deceit in the paternity fraud cases. By engaging in a comparative law analysis, the study focused on examining the following questions (i) Is there an overriding public interest in using the law to address paternity fraud? (ii) Can the tort of deceit be used to address paternity fraud? (iii) Does making paternity fraud a cause of action in the tort of deceit violate the res judicata rule when it involves divorced spouses? The study concludes that the application of the tort of deceit in the paternity fraud cases improves the equity and justice outcomes of the case stakeholders and at the same time, does not violate the res judicata rule for the divorced spouses.
Keywords: Tort of Deceit, Family Law,Legal Theory, Common Law, Res Judicata
JEL Classification: Y40
Suggested Citation: Suggested Citation