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The Divorce Encyclopedia
Presumption


Term Definition Presumption - a legal fiction that is used in certain cases, one which is rebuttable or refutable only by clear and convincing evidence that it is false.
Application in Divorce Presumption, which has a number of applications in law, requires that in the absence of proof, certain inferences must be drawn from available evidence.

In divorce actions, for example, most states start with assumption that the husband is the father of all of the children borne to a woman during her marriage to him. At one time, under Lord Mansfield’s rule, all the children borne to a married women were assumed to be her husband’s. In this a woman’s husband is termed the putative father.

DNA testing permits men to rebut this presumption of paternity and in some jurisdiction in certain cases to refute it. To rebut or refute a presumption requires clear and convincing evidence that it is wrong or false, although the practices on this exception vary from jurisdiction to jurisdiction.

See Lord Mansfield’s Rule; Clear and Convincing.

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