Presumption of paternity
Paternity simply means being the father of a child. Paternity and parentage are not the same thing in legal terms.
- Paternity is a statement, acknowledgement or proof of being a child’s father. It is specifically about fatherhood or the status of being a father.
- Parentage is confirmation of a person being a child's mother or father. It is about parenthood or the status of being a parent.
What is the presumption of paternity in family law?
In family law, presumption of paternity means that children of parents who are married are believed to be the children of the husband.
This means if the parents are married, the husband does not have to prove he is the father of any children born in the marriage. This is unless there is proof that he is not the father.
If a child is born more than 10 months after a couple separated, the presumption that the husband is the father does not apply.
When parents are not married
There is also a presumption of paternity if parents are not married to each other, but the father’s name is on the child’s birth certificate.
However, it can be different if the parents are not married to each other and the father’s name is not on the birth certificate.
Fathers who are not married to the mother of their children and are not named on the birth certificate may need to prove paternity for several reasons. These include to apply for:
- Access to their children
A parent may need to prove the father is the father of their child or children so they can apply to the court for a maintenance order. Whether married or not, there is a legal responsibility on both parents to maintain dependent children.
If the father acknowledges paternity
If a father acknowledges paternity, his name can be added to the birth certificate if:
- Both parents agree, or
- There is a court order naming him as the father.
If the alleged father disputes paternity
If the alleged father disputes that he is the father, he may agree to a medical paternity test.
If he doesn't agree to this, the court (usually the District Court) may direct that the alleged father does a paternity test.
Where someone refuses to give a sample for a paternity test, the court can draw whatever conclusion from the refusal. For example:
- If the alleged father refuses to give a sample, the court may decide he is afraid the test will show he is the father.
- If the mother refuses to give a sample, the court may decide she is afraid the test will prove the named man is not the father.
Paternity testing is carried out usually using swabs from the mouth, but can also use blood and hair.
To get a paternity test, you can:
- Contact a laboratory yourself (they will ask you to choose a GP to do the tests)
- Go to a specialist agency that will organise the test for you
If results are needed for court, you must confirm that the tests are done to a court approved standard and are accredited.
If the results are for ‘peace of mind’, the procedure is less expensive. However, you must confirm with the testing service that it uses an accredited laboratory.
You cannot use the test results to have the father's name placed on the birth certificate without his consent.
Cost of paternity test
The costs of paternity testing depends on the type of test selected. The type of test you choose to do depends on what you need the test for, for example, for court proceedings.
Paternity testing is not part of the public health system so you will have to pay for any tests. Depending on the situation, the court may make an order for who should pay the costs, or if they should be shared.
How to apply for a declaration of parentage
You can apply to the Circuit Court for a declaration of parentage stating that you are or are not the father, mother or parents of a child. Similarly, a child (as an adult) can apply for a declaration stating that a person or persons named is or is not their father, mother or parents. This can be done even if the parent is dead.
You must include relevant evidence to prove that you are or are not the child’s parent, for example, a paternity test result.
You must also attend in court on the day to make your application.
After considering all the evidence, including any contrary evidence, the court will decide if parentage has or has not been proven.
The court will then make a formal declaration of parentage in writing. This sets out the court’s findings, which all parties (mother, alleged father) must follow.
A declaration of parentage can be used to add the father’s details to his child’s birth certificate.
Do I need a solicitor?
You can hire a solicitor to make an application or you can make the application yourself. You can contact the Legal Aid Board to see if you are eligible for legal aid.
Children of parents who are not married to each other may also have to prove paternity in order to get their maintenance or inheritance entitlements.
This is not necessary if the father acknowledges paternity or is named as
the child's father on the birth certificate. If he acknowledges paternity, he
can agree to have his name added to the birth certificate.
Treoir has further information on paternity testing (including a list of laboratories and specialist agencies). Download Treoir's leaflet on Establishing Paternity/DNA Testing (pdf).
The Courts Service website has information on Paternity and declaration of parentage, and the court forms for making an application.