Duhaime's Law Dictionary


Pater est quem nuptiae demonstrant Definition:

Latin: The father is he who is married to the mother.

Related Terms: Paternity, Legitimate Child, Child of the Marriage

Also interpreted as:

"He is the father whom the nuptials point out, or whom marriage indicates."1

John Trayner gave a rather exhaustive description in his 1861 treatise on Latin maxims as then law in Scotland:

"Pater est quem nuptiæ demonstrant: he is the father whom the marriage indicates to be so.

"All children born in wedlock are presumed to be the legitimate children of the husband and wife, but this is a presumption which may be re-argued.

"Formerly our law demanded, in order to overturn the presumption of legitimacy, a proof amounting to this: that it was physically impossible for the husband to be the father of the child, in respect either that he was impotent and incapable of procreation, or that he was absent from his wife and could not possibly have had access to her during the period of gestation, which is fixed by law to be not more than ten nor less than six months before the birth.

"This rule of law has been considerably relaxed by the more recent decisions upon the point. It may now be regarded as settled, that the Court, in deciding whether the child born in wedlock is the child of the husband, will take into consideration, not only such evidence as will tend, in consequence of the husband's impotency or absence, to prove that this is a physical impossibility, but also such evidence of the relative position of the parties, their habits of life and conduct, their statements regarding the point at issue, and, indeed, any competent evidence tending to induce a moral certainty that the child is not the issue of the spouses.

"It is not sufficient, however, to overturn the presumption of legitimacy, that both husband and wife shall declare the child to be that of another than the husband, unless such declaration is corroborated aliunde, because it might be their interest at the time to make such a declaration, to the prejudice of the legal rights of the child as their own legitimate offspring. In such case the law constitutes itself the guardian of the child's rights, and requires the clearest evidence of its illegitimacy before declaring it to be so.

"This maxim has no application in the case of a child born out of wedlock, but whose alleged father subsequently married its mother."

REFERENCES:

  • NOTE 1: Kinney, J. Kendrick, Law Dictionary and Glossary: Primarily for the Use of Students but Adapted Also to the Use of the Profession at Large (Chicago: Callaghan and Company, 1893), page 514.
  • Trayner, John, Latin Phrases and Maxims (Edinburgh: William Paterson, 1861), pages 229-230.

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