A biological or adoptive father of a child has a legal duty to support his child, if the child needs to be supported and he is able to support the child. However, can the biological father claim back child maintenance after a negative paternity test?
In South African law, when money is transferred by one person to another person without there being a legal reason/cause for such transfer, it is called an unjustified enrichment. For example, after finding out that he is not the biological father, a father can argue that there was technically no legal reason to have paid the child maintenance and that the mother was unjustifiably enriched through this.
There are certain essential requirements that must be met before it can be said that a person has been unjustifiably enriched by another person: One person must be enriched by receiving the money. The transfer or payment must have been made in good faith and under a mistaken belief that it was owed. The mother of the child and to some extent the child themselves, must have received the maintenance in good faith or had a belief that they are entitled to receive maintenance as part of the father's parental duties/obligations. The father must be impoverished by paying the money.
Additionally, the transfer must have been made without a legal obligation, and lastly, the error in paying must be reasonable. This means that the mistake must be excusable in the circumstances of the case. In other words, the father needs to prove that he paid the child maintenance while under the impression that he had a legal duty to support the child.
Although it seems that fathers have met all the requirements for a claim of unjustified enrichment in this scenario, the courts have had quite a lot to say about one of the requirements in particular - whether the person (generally the mother of the child) was indeed enriched.
In a previous case, the court said: "Given the fact that the money that was paid was for the maintenance of a child (and there is no suggestion that the mother did not use it for that purpose), it would not be fair to her to now order her to restore either the entire amount or a part thereof to the father." The court held that there was no basis for finding that the mother was unjustifiably enriched, and the claim did not succeed.
In another case, the judge remarked: "Courts may in the future be wary of recognising claims in circumstances which necessitate an enquiry into paternity and which may have the tendency to destroy an otherwise loving and caring parental relationship with a child whose rights to family and parental care are protected under Section 28 of the Constitution."
The courts also touched on the important aspect of public policy in claiming back child maintenance and the judge made the following remark: "Considerations of public policy must be viewed through the prism of constitutionalism. Public policy represents the legal convictions of the community; it represents those values that are held most dear by the society. Since the advent of our constitutional democracy, public policy is now deeply rooted in our Constitution and the values that underlie it. The Bill of Rights, as the Constitution proclaims, is a cornerstone of that democracy; it enshrines the rights of all people in our country and affirms the democratic founding values of human dignity, equality and freedom."
While nothing bars fathers from bringing an unjustified enrichment claim in court, it is important to note that the merits of each case will determine its outcome. In terms of case law, if it can be proven that the maintenance went towards the support of the minor child, it cannot be said that the mother was enriched by the father, as the maintenance was for the benefit of the child. Technically, the claim would then have to be against the child, not the parent that received the maintenance on behalf of the child.
If the applicant is not the biological or adoptive father of the child, his legal duty to support/maintain the child falls away automatically. However, he will have a difficult time trying to convince a court to award him the amount he paid in child maintenance due to public policy and the stance in all matters pertaining to children is that their best interests and constitutional rights are of paramount importance.
Courtesy of Legalwise.
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