My child’s father is married, what are her rights?

Dear Mrs Macaulay,

I have a child who is three years old. When her father and I got together, he was married, but separated. I am not sure if he has since divorced, as we are no longer in contact. His name is on her birth certificate but he doesn’t have any kind of relationship with her. What are her rights with regard to any kind of inheritance or maintenance from his estate should he die while he is still married? How would I be able to claim benefits from his estate?

The fact that your child was born while her father was still married does not affect her legal status as a child of her father. The Status of Children Act in defining the word “child” states that the word includes a child born out of wedlock, and it further provides that all children are of equal status for every purpose of the law of Jamaica, regardless of the relationship between the child and the father and mother and whether they are or were married to each other.

The Act does make this sweeping provision subject in certain circumstances specified in it to some provisions in other sections, and it abolished all references in any legislative instrument to only a ‘legitimate relationship’. I will refer to these below as they relate to one of your questions.

The Act provides that it applies to every person in Jamaica, whether they were born before or after the first day of November 1976, and whether they were born in Jamaica or elsewhere and whether or not their mother or father had ever been domiciled in Jamaica.

The first provision in the Act to which the sweeping provision above-stated is made subject, is in the final sub-section of this substantive section of the Act which gives equal status to all children. It provides that nothing in that section shall affect or limit in any way certain rules of law and specifies four. The one which may relate to one of your questions provides that the said sweeping provision shall not affect or limit the construction of the word “heir”, or any expression which is used to create an entailed interest in real or personal property, if your daughter’s father’s last will and testament contains such a provision.

The second exception in the Act aforestated, relates to all ‘dispositions’ made before the first day of November 1976, that would continue to be governed by the acts and rules of law which would have applied to them despite the passing of the Status of Children Act. It defines the word “disposition” as including an oral one, whether of real or personal property, and whether made during a person’s lifetime or in a will or codicil, and goes on to provide for the protection I have stated in the paragraph immediately above this, even if the will or codicil made before the stated date is confirmed by a codicil made on or after the said first of November 1976.

The third provision in the Act which is relevant to one of your questions, deals with the need for the recognition of paternity in cases of succession of a child to a father’s estate. The section provides that the relationship of father and child and other relationships traceable for this, for reasons of succession to property or in the construction of a will or other testamentary disposition or any instrument which creates a trust, can only be recognised in instances including if:-

(1) The father and mother were married at the time of the conception of the child or married at a later time; or

(2) Paternity was admitted by the father or paternity was established during the father’s lifetime by way of evidence as specified in the next section of the Act or otherwise found sufficient by the court.

There is another requirement if the issue to succession to property is for the benefit of the father to a child’s property, that the father had admitted or established his paternity during the lifetime of the child or before its birth.

There is also provision relating to the circumstance when for certain purposes the relationship of father and child was not recognised before the child’s birth and when the happening of any act or event or conduct enables the father/child relationship to be traced and to be recognised, that, if real or personal property or any right or interest therein had passed to any person absolutely, beneficially or legally before the occurrence of such act, event or conduct, the recognition of the father/child relation shall not affect the passing of such right, estate or interest in such property.

So what do these all mean for your child and to your responsibility to her rights and interests?

Your child has the same status as any other child of her father, even those he may have had in his marriage and any after her birth. Whether he is still married is of no consequence to their relationship or upon you child’s rights and entitlements, as long as there is, or you obtain the recognition required under the law, for her to enjoy her status and entitlements as his child.

You say that the father’s name is on her birth certificate but you have not stated how this came about. Was this as a result of you or the person who reported the birth giving his name as the father, or was it based on his admission or declaration that he is her father?

If he did not admit and declare his said fatherhood, you have the responsibility to your child to apply to court for a declaration of his paternity, so that your daughter can legally claim her rights against him during his lifetime and against his estate after his death.

You can make this application in the Family Court which serves your parish. Just go into the court’s office and tell them that you wish to make an application for a declaration of paternity of your child and for her legal custody, care and control. This must never be left out as it can lead to problems between you and him later. Apply also for her maintenance.

Your child is already three years old and so far, you have, by not having made these applications, deprived her during these years of her rights, including her right to :-

(a) The legal and social recognition and the consequent security of the recognition of her father/child relationship;

(b) Have a personal relationship with her father, if possible;

(c) To have him contribute to her maintenance;

(d) To be recognised as one of his beneficiaries or dependants pursuant to the Inheritance (Provision for Family and Dependants) Act 1993; and

(e) Her legal share pursuant to the Intestate’s Estates and Property Charges) Act, without you then having to rush to apply for a declaration of his paternity to be recognised by the administrator general or other administrator of his estate.

Please do not continue to cause more time to pass and deprive your daughter of her rights and do not continue to ignore your obligations to ensure that she enjoys them.

So go to the Family Court for your parish now and make all the applications I have suggested. I suppose though you no longer have any relationship with him, that you still know where to find him. You will need to give his address to the officer in the court’s office for the summonses to be served on him by the bailiff of the court, if you so request. Good luck to you and your daughter.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver. com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5.

DISCLAIMER:

The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.