By Rose Kaluwe
Introduction
Paternity
fraud happens when a man is misled into believing that he is the biological
father of a child, and it has emerged as a concerning issue in modern society
with far reaching implications on the individuals involved and the family unit
as a whole[1].
As such, Zambian men have not been exempted from this heinous deception. This
concept is mostly illustrated in a situation where a man is deliberately
misidentified as the biological father of a child, by a woman who is the
biological mother of the child either within or outside the institution of
marriage on official documents such as the birth certificate[2]. This
makes a false perception of paternity and may result to financial, social, and
emotional complexities on the innocent man who discovers the truth. To fully
understand the concept of paternity fraud, this article will begin by defining
key terms such as paternity, fraud, and paternity fraud. Thereafter, it will give
the background, causes of paternity fraud, literature review, Zambian laws that
addresses paternity fraud, reimbursement as a remedy in south Africa and lastly
recommendations.
Definition
of Key Terms
Paternity
Paternity is defined as the state of being a father of a child. It is a
status of being accorded the right of fatherhood[3].
Paternity can either be ascribed or adopted. In the former, paternity comes as
result of a natural consequence of sexual activity and the child is a product
of the father and the mother. In the latter, it is as a result of a legal
adoption by law[4]. However, for purposes of this
work, ascribed paternity will be used to understand the whole concept of
paternity fraud.
Fraud
The Oxford Learners
Dictionary defined Fraud as a form of wrongful and criminal deception intended
to result in financial or personal gain[5].
In fact, the mere mention of this word in an average man’s ear brings a
presumption of illegality. The Black Law Dictionary defined fraud as the
deliberate misrepresentation of the truth or concealment of a material fact to
induce another to act to his or her detriment[6].
The latter definition clearly gives detail to what would amount to fraud and
further highlights that it can involve the concealment of information calculated
at obtaining a benefit at the wilful but negligent act of the induced party.
The last definition is broader and establishes the principle of law generic to
both civil and criminal matters, meaning that fraud must consist of an element
of knowledge of truth intended to conceal, omit, or distort information from an
act.
Paternity Fraud
Paternity Fraud is a concept
used to describe misattributed paternity or induced paternal discrepancy. It is
commonly illustrated in a situation where a man is deliberately misidentified
as the biological father of a child, by a woman who is the biological mother of
a child whether within or outside the institution of marriage[7]. This situation makes a false
perception of paternity and is capable of leading to legal and emotional
complexities on the man involved.
Causes of Paternity Fraud
1.
Infidelity and adultery in and out of marriage
If a woman
engages into an extra marital relationship and becomes pregnant, she may choose
to conceal the infidelity and claim that the husband is the father of the child.
This decision is often driven by fear of societal judgement, stigmatization,
potential consequences such as divorce or loss of financial support[8].
Furthermore, there is a presumption that a child born within marriage belong to
the husband and wife as such proving paternity fraud would be quite
challenging. For unmarried couples, fornication or rather sex outside marriage
can be a probable cause of paternity fraud.
2.
Unprotected Sex
One of the probable consequences of unprotected sex is the risk of unwanted pregnancy which would lead to paternity fraud. This could occur in situation where a woman falsely attributes a child’s paternity to a man who is not the biological father of that child between married people[9]. This situation can also occur with unmarried people especially in cases of unsafe promiscuity and when a sexual encounter results in pregnancy it becomes difficult to ascertain the child’s true biological father without genetical testing. Therefore, in most if not all cases women will pin the pregnancy on either the most financially stable ma n or a man that is mentally ready to take the role of fatherhood.
3.
Decline in public moral and sexual activities
The novel
infusion of western approach to sexual responsibility has been found to have
negative influences on both married and unmarried couples in Zambia as well as
other African countries and that has as a result led to numerous crimes and
offences such as paternity fraud. The dire need to advance and be like
developed countries have actually progressed however, not has there been
advancement in technology and other general aspects of life learned from
western cultures but also decay and decline in morals in both the young and
old, married, and unmarried.
Background of Paternity Determination
The
historical context of paternity fraud dates back to the early human race and is
intertwined with the understanding of adultery[10]. This happens when an
unfaithful spouse is trying to cover up an unwanted pregnancy from an
adulterous act, or a man invading responsibility for a child born outside
wedlock. Paternity determination has developed over time, and this was shown in the case of Jeffries V Mores,[11]
which discussed that the
predecessor of DNA was the bald eagle evidence which allowed parents to offer
evidence of a child’s likeness to that of the father based on physical
characteristics. In the realm of paternity determination, it is now possible to
have a non-intrusive prenuptial paternity DNA test which can be performed
as early as the 10th week of pregnancy meaning that one can choose
to confirm immediately who the father is nearly after the pregnancy is
confirmed[12]. In Zambia, the issue of paternity fraud is one which the general
populace is aware of but gives a blind eye to. Culturally, African fathers
often care for their children born within and outside wedlock, but issues arise
when there is doubt of paternity. The Zambian case of Obed
Mubanga V Mubanga,[13]
among other cases established the principle that a child’s welfare is the
primary obligation even after proving paternity fraud. This case proved that men’s
rights in case of paternity fraud were not considered, and no remedy were
accorded to the victim when the law provides that, ‘’Ubi Jus
Ibi Remedies’’ meaning that
where there is a wrong there is a remedy.
Literature
Review on Paternity Fraud
G. Mhaka stated that, the root cause of paternity fraud is multifaceted,
societal pressures, teenage pregnancies, forced marriages, manipulation for
child support, unaware of multiple potential fathers, fear, and shame of stigma
from having a child outside marriage. He also wrote that; a childless marriage is not a blessed
marriage according to the mindset of many Africans. Experts have
advocated for mandatory DNA testing at birth which would not only provide for
clarity but also prevent the development of strong emotions between
non-biological parents which would be devastating upon later realization of the
truth. Some women do this to protect
their `infertile` husbands` virility by giving them a child that does not
belong to them, some however, use it as a way of milking rich men in the name
of child support[14].
B.
Mandabva stated in his
article that Africans place great importance on family lineage, celebrating
cultural tradition, and understanding one’s ancestral roots. The child’s best
interest must be the primary consideration and the right to one’s true identity
should be protected. She further stated that, men who used to deny their
children’s responsibility urging on paternity issues can now be brought to
account through DNA testing[15].
P.
Mushawevato emphasises
in his article that, according to a report in the Sunday mail 2021, 80% of
Zimbabwean men who suspected their partners of infidelity and sought paternity
test had their doubts confirmed, furthermore 70% of women seeking maintenance
from alleged fathers were involved in paternity fraud. The increasing demand
for DNA paternity tests in Zimbabwe has sparked worldwide debate with
statistics revealing a high rate of paternity fraud among couples undergoing
these tests[16].
I. Kareem writes that keeping family secrets is not as easy as
it used to be, as Deoxyribonucleic acid (DNA) paternity tests are unveiling a
lot of buried family secrets. Just one DNA test could change everything for
better or for worse[17].
This work is significant as it has highlighted importance of using DNA testing,
but it has not provided the possible remedies to be given to victims of
paternity fraud.
D.
Heather explores the concept of compensation in cases involving paternity fraud
and assists this study by delineating the criteria for granting reimbursement
to individuals who have fallen victims of such deceptions. He underscores that
reimbursement claims can encompass child support payment, property settlement
reversal and general expenses when issues of paternity fraud are disclosed.
Zambian Laws That protect Men form paternity fraud
Paternity
fraud is a significant problem that has continued to plague not only the African continent, but other continent and
has created a dire setback in the social health of the country especially in
the institution of marriage and the family unit. There are various laws in
Zambia that recognize and makes paternity fraud a crime and are aimed at
protecting men’s rights like Section 9 of the Birth and Death Registration Act,[18] which states that,
“any person who wilfully gives any false information or particulars for the purpose of registration shall be guilty of an offence and shall be liable to a fine not exceeding two hundred penalty units or to imprisonment not exceeding one month without hard labour or to both”.
Furthermore, Section 128(2) of the Children’s Code Act,[19] states that,
“Any person who impersonates another person for purposes of paternity test commits an offence and is liable on conviction to a fine not exceeding two thousand penalty unit or imprisonment for a term not exceeding two years or both”.
All these provisions have mentioned and acknowledged that paternity fraud
is a punishable offence in Zambia however in reality perpetrators are left
unpunished for their crimes unlike in other countries where offenders face
trial to ensure that justice is served to all without discrimination.
Furthermore, Section 135 of the Children’s Code Act states that,
“A court may very or discharge a maintenance order or suspend a provision of the maintenance order temporarily and may revive the operation of a provision so suspended’’. However, in reality, none of this is done as victims of paternity fraud continue to suffer in silence and are not given any remedies even after the case has been brought to the court’s attention.
South Africa’s Approach to Paternity Fraud;
Reimbursement as a Remedy
While Section 26 of the Children’s Code Act of
South Africa states that,
“A person may apply to the High Court, a divorce court in a divorce matter or a children’s court for an order-suspend for a period or terminate any or all parental responsibilities and rights which a specific person has in respect of a child’’[20].
In the Constitutional High Court of South Africa, it
was held in the case of Seetal V Pravitha,[21], the Durban and coast
local Division[22]
stated that, where the paternity of a child is in issue, the court may order a
DNA test for the assertion of the child’s paternity, provided the best interest
of the child is adequately safeguarded. It also highlighted that; women need
proof of paternity if they are to claim for maintenance of a child.
One of the most instructive cases on the point of law
in south Africa in relation to paternity fraud is the famous case of Nelson
V Jonker,[23].
In this case, the ex-husband, who had believed for 16 years that a
child born during marriage was his biological offspring, later discovered
through DNA testing that the child belonged to another man. The Ex-husband
seeking to recover the maintenance payments he had made for the child, argued
that he had supported the child in good faith, believing it was due and
payable. The court relieved the ex-husband of future maintenance obligations.
Furthermore, the court awarded damages to the ex-husband the amount he had paid
towards the child’s maintenance since the divorce. The ex-husband claim was
based on ‘’condictio indebiti’’ asserting a ‘’mutual error’’
between the parties.
On appeal, the high court disagreed with the lower
court’s decision as the ex-husband failed to meet the requirements of
unjustified enrichment claim. The ex-husband could not demonstrate that his
error in paying maintenance was reasonable, and the court emphasized the lack
of sufficient facts justifying his mistake.
Secondly, the court concluded that there was no proof
that the mother of the child was enriched by the maintenance payment. The court
questioned how the defendant could be considered enriched when she was merely a
conduit for the child, and there was a lack of evidence regarding the financial
details of the mother and the cost of the child. The ex-husband failed to
establish prima facie evidence in case of enrichment
Thirdly, the court refused the action based on
consideration of public policy. It noted that the ‘’condictio indebiti’’
is an equitable remedy aimed at corrective justice. The court expressed concern
about the potential negative impact on the child and the loving parental
relationship if claims similar to the ex-husband were recognized in the future.
On appeal on these grounds were upheld and the
ex-husbands claim was dismissed. The court found that he did not meet the
necessary requirements for an unjustified enrichment claim, considering factors
related to the reasonableness of his mistake in asserting fatherhood over the
child, the proof of enrichment and of public policy.[24]
From the foregoing decision, it is safe to ascertain
that the position of the law in relation to remedies for paternity fraud
includes legal suspensions of paternal obligation and reimbursement of child
expenses where the claim succeeds where it has been proved that there was
unjust enrichment as well as the satisfaction of other requirements. From this,
it can be seen that south African is a step ahead in providing a remedy to
victims of paternity fraud as it actually has a mechanism which would in
details look at whether an assertion of paternity fraud is reimbursable or not
which is not the case in Zambia.
Legal Evaluation of The Nel V Jonker Case
A legal evaluation of the decision by the Marita
Carnelly and Shannon Hoctor[25] on
the case of Nel V Jonker stated that the court’s decision was
right on the failure of the claimant to prove unjust enrichment against the
defendant and thus his actions would fail, the principle on the claim of unjust
enrichment could still be applied to cases of paternity fraud. Meaning that if
a man claims that he had been unjustly defrauded by a woman, he can bring a
legal action to regain what was lost from him provided all the requirements or
the prima facie evidence is satisfied.
They further alluded that, according to the case of McCarthy Retail Ltd V Short Distance Carrier CC,[26] it was stated that, the element
needed to be proven to make a claim on unjust enrichment includes (i) the
defendant must be enriched, (ii) the plaintiff must be impoverished, (iii) The
defendant’s enrichment must be at the expense of the plaintiff, (iv) there was
no legal ground or justification for the retention of the enrichment.[27]
In order to prove these elements in relation to paternity fraud, the claimant
is expected to prove that there was a transfer of money for the maintenance of
the child and that the transfer was undue, meaning that there was no legal
obligation on the putative father to maintain the child of another man.[28]
Furthermore, the claimant is expected to prove that
the payment had unjust enriched either the biological father or mother. This
could be difficult to prove for the claimant according to the author, because
the payment was for the maintenance and benefit of the child, and not directly
for the gain of the mother or the biological father.[29]
Such cases are present in Zambia where women lie about
the paternity of a child because the biological father at that moment is either
not ready to take the role of fatherhood or is not financially stable to
support his child. The biological mother and the biological father may beware
aware of the paternity of their child yet mutually agree to put the burden on
the innocent man who is either married to the women or is financially stable.
This thus suggest that a claim should be brought against a man who shuns his
parental responsibility and puts it on another man.
Furthermore, while adopting the position in the case
of Schrage[30]
who relied on the French decision, of L v L,[31]
the author argued that the biological father or the mother maybe held liable
for enrichment at the expense of the claimant provided that the claimant can
prove that he was not aware of not being the father of the child, which lead to
the enrichment of the biological father who was relieved of his legal duties.
The facts of the French case of L V L
are that, after the divorce the ex-wife to the claimant (first husband) married
another man and later on discovered that, the second husband was the biological
father of the child born to her when she was still married to the first
husband, as such the claimant and his ex-wife did not have a child together.
Since the first husband was paying maintenance for his child, he brought an
action against the wife for the restitution of those payments as money paid
when it was not due. The action against the ex-wife was ineffective against
because she was insolvent, however, the claimant nevertheless successfully
brought an enrichment action against the second husband who was the legitimate
father which was a success. The first husbands claim was predicated on that he
was impoverished by his payments and the second husband was enriched by the
discharge of this legal duty to support his legitimate chid. This action
against the biological father was therefore successful and upheld on this
ground.
From this can be seen that some countries have not
just prohibited paternity fraud but have made it possible for actions to be
brought against the deceitful woman and the biological father of the child if
he had the knowledge.
Johann Christine Sonnekus
With reference to the L v L case,
Sonnekus[32],
argues that instances of prove in the L V L should allow an unjust
enrichment to claim against the biological father in south Africa. He argues
that the enrichment is to be found in the saved expenses that the mother and
biological father would have incurred if they had assumed their legal responsibilities,
and the improvement is the expense paid by the putative father who is the
claimant[33].
He further argued that the putative father may also have a claim against the
mother in a case where she has not contributed to the maintenance of the child
up to the point of determining the child’s paternity, since both parents are
responsible for under law for maintenance of their child in solidum, with which
the duty of the wife can be enforced. The author believes that parental
responsibilities must not only be limited to the father or men, but women also
do their part in ensuring that a child is taken care of in the right way and
manner by the mother.
On the other hand, Sonnekus argues that if the court
seeks to expunge the mother from liberty, the claim against the biological
father should succeed in totality, leaving him the option to choose whether to
reclaim back the damages from the mother out of her required share of
maintenance duty[34].
The consequence of this argument is that the biological father should be
responsible for both the damages awarded against him and his wife, with an
option to reclaim from her.
From the ongoing argument, it may be argued that the
putative father on the ground of paternity fraud might be able to recover the
amount he has spent on a child from the biological father or mother on the
ground of unjust enrichment. This is however uncertain at this time in South
Africa and maybe a decision to look forward to in the subsequent cases
overtime, since the court in Nel V Jonker are seemingly unaware of the
arguments of Sonnekus as well as other authors, their ruling remain in the same
position of law.
Notwithstanding the multiple baulk on the likelihood
of ignorance in the case of paternity fraud, South African legal Authors Marita
Carmelly, Shannon Hector, and Johan Sonnekus argue that the conduct of the
mother in the case of paternity fraud often do not only involve a direct
intention to defraud, but also intention in the form of dolus eventualis,
where the accused foresees the possibility of the harm occurring but continues
in her course of action[35].
Thus, where the mother suspects that the wrong man is being targeted for
parental obligations but continues to burden him with these duties and their
accompanying emotional and financial consequences regardless of such suspicion,
the crime of fraud would be committed, and such can be prosecuted[36].
From the cases discussed above and legal evaluation by
prominent legal authors, it has been shown that in south Africa, victims of
paternity fraud have remedies such as suspicion of parental duties, termination
of parental obligation and reimbursement or damages where it has been proved
and all elements are satisfied.
Recommendations
Establishment of a Paternity Tribunal
Establishing a
paternity tribunal specifically for the purpose of determining matters relating
to paternity fraud or misattributed paternity, separate from other traditional
courts would speed up the process and ensure that parties have their cases
heard and in an amicable way. Furthermore, parties to the paternity suit
should, if necessary, include the putative father, the biological father, the
mother and personal representative of any of the above where they are deceased.
Also, providing that the paternity suit can be consolidated with an order of suo
motu by the court or on application by a party for the changing of the
child’s name and birth certificate at the determination of the case upon
discovering the truth especially in cases where the biological father made it
clear that he is not willing or unable to provide for the child or is deceased
or cannot be found anywhere. Furthermore, providing for an application of
alternative dispute resolution especially negotiation and mediation in the
settlement would also help parties involved.
Reimbursement to Victims Of Paternity Fraud
Providing a provision
in the Zambian laws which would allow the victims of paternity fraud to claim
for damages against the biological mother or father if he were involved in the
deception of paternity fraud would serve justice to the victim for the expenses
incurred. Such a mechanism would be useful in the calculation of the expense
incurred on the child provided it is brought within the limitation period of
two years and one month of the birth of the child. As calculations would be a
general cost and at the discretion of the court in case where it is brought
within the 30-day period after discovery.
Accessibility and availability
Making DNA testing
facilities more available and accessible throughout the country in both rural
and urban areas would help in aiding victims of paternity fraud in discovering
the truth and also providing a remedy. Furthermore, making paternity testing a
routine at birth to prevent future paternity fraud cases and protect everyone’s
rights regardless of their gender, sex, age, or marital status would reduce and
prevent future cases of paternity fraud. Some would argue that, enforcing a
mandatory DNA test may be contrary to cultural and personal believes regarding
family and parenthood in Zambia.
To reconcile this,
providing informed consent options and emphasizing the benefits of genetic
testing for accurate parentage determination while respecting individuals’
rights to refuse could be helpful especially to unmarried mothers.
Public Awareness
Social and public
awareness campaigns on reproductive health and family planning would avoid
unwanted pregnancies and the crime of paternity fraud. Emphasizing education
and awareness the increase in paternity fraud cases would help the society
largely. This is a preferably alternative since it could try to curtail the
sexual habit or desire of individuals as well as prevent cases of paternity
fraud. In Zambia, issues of paternity fraud are not fully understood as the act
is not specifically addressed in any Zambian statute.
[1] M. Piki, ‘’How is the Rise In DNA Paternity Testing Affecting Dynamics
in Zimbabwe’’[2024]AYPAD-True-Talk-Project available at https://www.truetalknews.org/post/how-is-the-rise-in-dna-paternity-testing-affecting-family-dynamics-in-zimbabwe date accessed 10/10/2024
[2] Davis D.S,
‘’The changing Face of Misidentified Paternity’’ (2009) 32(4) journal of
Medicine and Philosophy, 359.
[3] Paternity,
Merriam-webster online dictionary. Accessed from<htpps://www.merriam-webster.com/dictionary/paternity#:~:text=The20meaning%20of%20PATERNITY%20is%the,quality%20or%20state%20of%20being%20a%20father>
12/10/25
[4] Brodzinsky
D. M.,’ Children’s Understanding of Adoption: Development and Clinical
Implication’’ (2004) 42(2) Professional Psychology: Research and practice, at
200-207, at 202
[5] Hornby, A.,
Oxford Advanced Learners Dictionary (6th Edn Oxford University
Press), 618.
[6] Garner, B.
A., & Black, H. C, Black’s Law Dictionary (6th edn,
1999).
[7] Davis D.
S., ‘’The Changing Face of Misidentified Paternity’’ (2007) 32(4) journal of
Medicine and Philosophy, 357-373.
[8] Godson F.H,
’’The rise of Paternity Frau In Nigeria- Why we should be worried’’ within Nigeria
weblog retrieved from https://www.withinnigria.com/piece/2021/09/12the-rise-of-paternity-fraud-in-nigeria-why-we-should-be-worried/ accessed on 18 July 2025
[9] Ayres, S., ‘’Paternity Fraud: Regulating of
Womens Sexuality and Family Relationships.’’ Available at https://ap.semanticscholars.org/CorpusID;115785521 Accessed on 18 June 2025
[10] Ayres, S.,
‘’Paternity Fraud: Regulating of Womens Sexuality and Family Relationships.’’
Available at https://ap.semanticscholars.org/CorpusID;115785521 Accessed on 18 June 2025 p. 4
[11] Jeffries
V Mores [2002] 559 S.E
2d 217
[12] Genovese, G., C.J., LoH, PR. Et al.
‘’Chromosomal phase improves aneuploidy detection in non-intrusive prenatal
testing at law fatal DNA fraction’’ (2022) available at
https://doi.org/10.1038/s41598-022-1409-5 date accessed 11/10/2024
[13] Obed Mubanga V Mubanga [2017] ZMHC 394
[14] Mhaka. G ‘’Paternity Fraud a New Pandemic in The Countr’’ (2023).
Available at https://bmetro.co.zw/paternity-fraud-a-new-pandemic-in-the-country/ date accessed 11/10/2024.
[15] Mandabva B., ‘’Cultural Panorama: Social Implications of paternity
test’’ (2021) available at https://www.newsday.co.zw/thestandard/standaard date accessed 11/10/2024
[16] Mushawaveto
P., ‘’Paternity Heartache for Men….Demand for test Shoots Through The Roof’’
[2021] available at https://www.sundaymail.co.zw/paternity-heartache-for-men-demand-for-test-shoot-through-the-roof
date accessed 11/10/2024
[17] Itunu A.,
‘Paternity Fraud In Nigeria Unveiling The Hidden Truth’ (2023) available at https://guadian.ng/life/on-the-cover/paternity-fraud-in-nigeria-unveiling-the-unhidden-truth/ date accessed 11/10/2024
[18] The Birth and Death Registration Act Chapter 51 0f 1973
[19] Children’s Code Act No 12 of 2022
[20] Section 26
of the Children’s Code Act 36 of 2005
[21] Seetal V Pravitha No. 1983 (3) SA 827(D)
[22] (KZN HC,
DBN)
[23] Nelson V Jonker (WCHC) unreported case number A653/2009 dated 2001-02/17
[24] Buthelezi
M., ‘’A Missed Opportunity to Settle the Law on DNA Testing in Paternity
Dispute Yd (Now M) V Lb 2010m6 SA 338 (Sca)’’ 2011 Obiter, at 483
[25] Marita C,
Shannon N., ‘’Misattributed Paternity Nel V Jonker (WCHC) unreported case
number A653/2009 dated 2001-02-17’’ (2012) obiter at 175.
[26] McCarthy Retail Ltd V Short Distance Carrier CC 2001 (3) SA 482 (SCA) par 15-25
[27] Du Plessis
J.E, The South African Law of Unjustified Enrichment (Juta & Co
Ltd., Cape Town, 2012). 47-48
[28] Du Plessis
J.E, The South African Law of Unjustified Enrichment (Juta & Co
Ltd., Cape Town, 2012). P. 18
[29] McCathy
Retail Ltd V Short Distance Carrier CC, Supra
[30] Schrage E,
J., ‘’Unjustified Enrichment, and the law of contract’’ (Spring,
Netherlands ,2001) ,14.
[31] L v L Civ
1.2. 1984, D 1984.388; D 1984 IR 315. Mestre, Rev.trim.dr.civ 1984,712
[32] Sonnekus J,
Unjustified Enrichment in South African Law (LexisNexis,2008) 238; 295.
Retrieved from https//www.google.com.ng/search?tbo=p&tbm=bks&q=subject:
%22Unjustfied+enrichment%22%source
[33] Sonnekus J,
Unjustified Enrichment in South African Law (LexisNexis,2008) 238; 295.
Retrieved from https//www.google.com.ng/search?tbo=p&tbm=bks&q=subject:
%22Unjustfied+enrichment%22%source
[34] Ibid 29
[35] ibid
[36] Burchell.,
Principle of Criminal Law 3ed (Juta and Co Ltd., Cape town, 2005) 867
About the Author
