LEGAL CONSEQUENCES OF PATERNITY FRAUD AND REMEDIES AVAILABLE TO VICTIMS.

Under English law or customary law, where a child is born within wedlock, the child is presumed to be a seed or product of the marriage. This submission is as provided in sections 165 and 166 of the Evidence Act¹. However, this presumption is rebuttable.

In Nigeria, the determination of the paternity of a child or person is either by an acknowledgement by the biological father or by proof via documents (e.g. a DNA test) as decided by the Supreme Court in Ukeje v. Ukeje (2014)² or via a medical report as provided for in section 63(1) (a) of the Child’s Rights Act³. A DNA test suffices as proof of paternity in marriages celebrated under the Marriage Act. However, in cases where there is doubt as to the result, as this has been recorded to happen, the parties are free to conduct another DNA test, to prove beyond all reasonable doubt and put the issue to rest.

In a situation where a DNA test proves that the putative father in question is not the biological father of the child, there are certain circumstances to consider:

1. Were the parties ordered by a court to undergo the test or did the parties choose to undergo the DNA test on their own?
2. Is the child in question a minor or an adult?
3. Are the parties married or not?
4. If married, is the marriage a statutory or customary one?

The answers to these questions above will determine the legal consequences/effects of a negative paternity test (paternity fraud) and the kind of remedies available to the victims.

WHAT IS PATERNITY FRAUD?

“Paternity fraud, also known as misattributed paternity or paternal discrepancy, occurs when a man is incorrectly identified as the biological father of a child. The underlying assumption of “paternity fraud” is that the mother deliberately misidentified the biological father, while “misattributed paternity” may be accidental. This fraudulent misrepresentation thus leads the man to erroneously believe that he has a biological connection with the child of another man”⁴.

THE LEGAL EFFECTS OF A NEGATIVE PATERNITY RESULT FROM A DNA TEST.

The legal effect will depend on the circumstances of each case and this can be discussed under the following sub-heads:

(1) EFFECT ON MARRIAGE:

Marriage under Statutory law

Dissolution of marriage is the most obvious legal consequence of a negative paternity test as oftentimes before parties engage in a DNA test, issues have already arisen that can break down the marriage irretrievably. A lot of the time, the result is just the last straw that breaks the camel’s back.

Marriage under Customary law

Where the marriage is one under customary law only, the dissolution of such a marriage is easier, as all the man needs to do is to announce and duly inform his in-laws of his intention to end the marriage on the basis of adultery culminating in paternity fraud. This is known as non-judicial divorce under customary law. A non-judicial dissolution of a customary law marriage is valid in law notwithstanding that a court has not ordered the dissolution. However, in a case where the parties have expressly stated in a document that divorce should be by court order, then the dissolution will only be valid if issued by a court⁵.

(2) EFFECT ON CHILD: 

The most devastating consequence of paternity fraud on the child or children of the marriage, especially if they are minors is the emotional, mental, social and psychological trauma which are a violation of the child’s right to dignity as the child is subjected to mental and emotional injury and torture as Section 11(a) of the Child’s Right’s Act 2003 provides that “every child is entitled to respect for the dignity of his person, and accordingly, no child shall be subjected to physical, mental or emotional injury, abuse, neglect or maltreatment, including sexual abuse”.

Apart from the emotional, mental, social and psychological trauma this revelation brings, his/her status as a child of the family and consequentially his/her rights to inheritance under the family he knows to be his own and this leaves his/her future uncertain and unstable leaving that child very vulnerable to the vicissitudes of life. So many questions are left unanswered like, “Is the child still a child of the family? Has the putative father, a legal right or even a moral right to turn him out of the family and if the putative father chooses to continue fathering the child, under what circumstances and how will this discovery affect the relationship? Is the biological father known? If yes, is he interested in being involved in the child’s life? What is the child’s inheritance rights in the family?

In Nigeria, a child is presumed legitimate if born in lawful wedlock. The converse is the case under most customary law rules, where a child is born not in lawful wedlock, he is illegitimate and accordingly has no right to succession.

However, a combined reading of section 1 of the Child’s Rights Act and section 42 (2) of the Constitution of the Federal Republic of Nigeria, provides as follows:

Section 1 thereof, this Act provides that:

“in every action concerning a child, whether undertaken by an individual, public or private body …the best interest of the child shall be the primary consideration”.

Section 42 (2) provides that:

“No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth”.

In effect, a child, being Nigerian, (notwithstanding that he is a product of paternity fraud) shall not be subjected to any disability and cannot be deprived of any benefits to which he/she would normally be entitled to (including the denial of any rights to inheritance) because of the circumstances of his birth. The rationale behind the intervention of the Constitution and all other laws in that regard is simply to not punish a child for acts that he did not commit. If the child in question is a minor, the child’s welfare is paramount as in matters like this where the child is the major victim.

Accordingly, all laws relating to children including laws as to custody of children are made to ensure the welfare and best interest of the child.

REMEDIES FOR VICTIMS OF PATERNITY FRAUD.

Concerning punitive measures for this act, our laws do not punish such mistakes as crimes and neither do the laws also, refer to them as fraudulent because they are mistakes in the true sense, being without the intention to deceive. Therefore, many of the reported cases of paternity fraud should actually be rightly referred to as Paternity mistakes or ‘Presumptuous Paternity’. One fundamental element of proving a crime is the possession of a ‘guilty mind’ (mens rea). A woman who reasonably believes that one of the men (including her husband, if married) that she slept with is the father of the child born of her, the fact of which is later proven otherwise, cannot be said to have committed fraud when she had no intention to mislead but only made a mistake in her identification of the man who impregnated her. There is therefore the existence of a thin line of intention to deceive that distinguishes between a Paternity Fraud and a Paternity Mistake6” There are legal remedies available to victims of Paternity fraud. A lot of victims, at the time of the discovery that they have been fathering another man’s offspring, have suffered huge financial loss from monies spent on the child’s welfare and upbringing till date, loss of time, psychological, mental and emotional trauma.

However, there are civil remedies available and this will be dependent on whether the ‘fraud’ happened in marriage or outside marriage. We shall discuss below:

1. Remedies for victim of paternity  fraud  in  marriages

Paternity fraud may not survive as a crime, however, the making of the false statement by putting the name of a false father on a document as public as a birth certificate amounts to a criminal offence, and the woman can be charged for criminal deceit or perjury occurring out of paternity proceedings.

When a DNA test reveals that the child in the marriage belongs to another father, what this legally means is that the woman has committed adultery which is a part of the one ground for Dissolution of marriage,7 the putative father can claim damages against the biological father and his adulterous wife to assuage his losses and can also claim financial maintenance from the woman on the ground that she caused the union to break down irretrievably.

Under the Matrimonial Causes Act, Section 31 of the Act provides that:

“(1) A party to a marriage, whether husband or wife may, in a petition for a decree of dissolution of the marriage alleging that the other party to the marriage has committed adultery with a person or including that allegation, claim damages from that person on the ground that that person has committed adultery with the other party to the marriage and, subject to this section, the court may award damages accordingly.

(2) The court shall not award damages against a person where the adultery of the respondent with that person has been condoned, whether subsequently revived or not, or if a decree of dissolution of the marriage based on the fact of the adultery of the respondent with that person, or on facts including that fact, is not made.

(3) Damages shall not be awarded under this Act in respect of an act of adultery committed more than three years before the date of the petition”.

1. Remedies for victim of paternity fraud for those who are not in  marriage

The victim can sue for “tort of deceit“. A paternity fraud victim may also be able to claim damages under existing civil laws. We know no known cases of such claims in Nigeria as yet but there is the reported case of a South Korean man who in 2004 was awarded $42,380 compensation for pain and suffering he suffered when a DNA test showed that his ex-wife’s paternity claim regarding their child was misattributed⁸.

CONCLUSION

As rampant as paternity fraud is, there appears to be no legislation anywhere in the world criminalizing this act. Paternity fraud is a family interpersonal matter, the law cannot criminalize acts and conducts arising from such interpersonal family issues. Inasmuch as there is no known case of a criminal conviction for paternity fraud but there is a growing clamour and need for legislation criminalizing paternity fraud to curtail and quell this growing problem to enforce a greater sense of sexual responsibility and accountability in women.

In conclusion, whatever the situation or circumstance of each case, it is paramount that all the parties involved ensure that the best interest of the child or children is top of mind when making decisions, especially far-reaching ones.

CITATIONS

¹   Cap E14, Laws of the Federation of Nigeria, 2010.

² 11 NWLR (PT. 1418) 384

³ Cap C.50, Laws of the Federation of Nigeria, 2010.

⁴  Wikipedia

⁵ Paternity Fraud: Legal And Social Implications by His Honour Miakpo Emiaso at the Annual Nigerian Bar Association SPIDEL Conference 2021 held at Ibadan 23^rd – 26^th May 2021 https://legalnaija.com/paternity-fraud-legal-and-social-implications/adedunmade/

⁶ Paternity Fraud: Examining the Legal and Social Implications by Frank Tietie http://loyalnigerianlawyer.com/paternity-fraud-examining-the-legal-and-social-implications/

⁷ ADEYEMI V ABAYOMI (2002 FWLR (pt 132) 136

⁸ Legal Issues In Paternity Fraud And Remedy For A Victim by Ehidiamen Destiny Odianosen  Esq: https://barristerng.com/legal-issues-in-paternity-fraud-and-remedy-for-a-victim-by-ehidiamen-destiny-odianosen-esq/