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Unmarried Parents and Child Law


Due to an array of circumstances, many people have children without getting married. These parents may choose either to cohabit as if married or to continue their separate lives. In most cases, if the relationship breaks down, it will be just as acrimonious as the breakdown of a marriage.

Because in these situations there are usually no assets to divide, the key issues centre on maintenance payments and support from the father, and the father’s right of contact with his child. Often, the mother will limit or even deny the father contact, especially if she feels it is in the child’s best interests. Extraordinary circumstances notwithstanding, the only one who actually loses in this type of situation is the child.

In the Children’s Act, the focus is not on parental authority and rights, but on the child’s rights. The Act provides that the best interests of the child are of paramount importance and must be applied and taken into account in all matters concerning the care, protection and well-being of the child. The Act sets out an exhaustive list of factors that should be taken into account when considering what is in the child’s best interests.

Parental responsibilities and rights

Parental responsibility is the responsibility to care for the child, to maintain contact with the child, to act as guardian of the child, and to contribute to the maintenance of the child. The Children’s Act further sets out that a person may have full or specific parental responsibilities and rights. Full parental responsibilities and rights means that a person may be entitled to all the rights set out in the Act. Specific parental responsibilities and rights means that a person may only have a specific right in terms of the Act; for example, the right to act only as guardian of the child.

A parent or guardian:

  • administers and safeguards the child’s property and property interests;
  • assists or represents the child in administrative, contractual and other legal matters;
  • gives or refuses any consent required by law in respect of the child, including consent to marry, to be adopted, to leave or be removed from the country and to apply for a passport; and
  • gives or refuses consent to the alienation or encumbrance of any immovable property of the child.

Whenever more than one person has guardianship of a child, each is allowed to exercise independently and without the consent of the other any right or responsibility arising from such guardianship, unless any other law or competent court orders otherwise, in which case the consent of all the persons who have guardianship will be necessary.

The Act governs both the acquisition and loss of parental responsibilities and rights not only by the parents of the children involved but also in respect of other persons. There are a number of ways in which a person can acquire parental responsibilities and rights in respect of a minor child. Depending on the circumstances, a person may acquire parental responsibilities and rights automatically or by way of an agreement, a will or a court order. Biological parents acquire parental responsibilities and rights automatically in terms of the Act. The rules are somewhat different for biological mothers, married fathers and unmarried fathers, and will be dealt with below.

Biological parents

Biological mothers

The biological mother, whether she is married or not, has full parental responsibilities and rights in respect of her child. She attains those rights solely on the fact that she has given birth to the child.

Married biological fathers

The biological father has full parental responsibilities and rights in respect of the child if:

  • he was married to the child’s mother at the time of the child’s conception and birth;
  • he is married to the child’s mother; or
  • they are or were married at any time after the birth.

Unmarried biological fathers

Despite the increased recognition of the beneficial role that fathers can play in the lives of their children, the Children’s Act still does not confer automatic, inherent parental rights on biological fathers in the same way it does for mothers. According to the Act, an unmarried biological father will have automatic parental rights and responsibilities only if:

  • at the time of the child’s birth, he was living in a life partnership with the mother, i.e. they were living in a de facto husband and wife relationship and chose not to get married;
  • regardless of whether he was living with the mother or not, he consents to be identified as the father of the child or applies for an amendment to be effected on the birth certificate that he be registered as the biological father of the child in terms of the Births and Deaths Registration Act, or pays damages in terms of customary law; and
  • he contributes or has attempted to contribute in good faith to the upbringing of the child within a reasonable period, and has paid or attempted to pay maintenance.

Disputes

If there is a dispute between the biological parents over any of the above criteria, then the question of whether the father has parental responsibilities and rights must be referred for mediation to a family advocate, social worker or other suitably qualified person. Mediation is the process whereby the participants, together with the assistance of a neutral party, systematically isolate disputed issues in order to develop options, consider alternatives and reach a consensual settlement that will accommodate their needs.

There are several possible outcomes of such a mediation:

  • the parties cannot agree on whether or not the father meets the criteria;

  • the parties agree that the father does not meet the criteria and the mother is not prepared to grant him any parental responsibilities and rights;

  • the parties agree that the father does not meet the criteria but the mother is prepared to grant him specific parental responsibilities and rights by means of a parental responsibilities and rights agreement;

  • the parties agree that the father has parental responsibilities and rights and agree on a parenting plan; or 

  • the parties agree that the father has parental responsibilities and rights but cannot agree on a parenting plan.

If the parties are unable to reach settlement on whether the father satisfies the criteria or not, the family advocate will issue Form 6 – a statement of the outcome of the mediation. The parties may then approach the Court for adjudication of the issues. If the matter is brought to the Court, the court will usually refer the matter to the family advocate for investigation.

If the parties reach agreement that the father does not satisfy the criteria, they may still agree to enter into a parental responsibilities and rights agreement, wherein the mother confers certain parental responsibilities and rights on the father. Alternatively, the father may apply to be granted certain parental responsibilities and rights, care, contact or guardianship.

If the parties reach agreement that the father does satisfy the criteria, they can enter into a parenting plan. The family advocate will then assist them.

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Unmarried Parents and Children
Parental Rights and Responsibilities
Care and Contact (Custody) of Children
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Divorce Process in South Africa
Division of Assets in Divorce
Divorce and Retirement Funds
Rule 43 and Interim Maintenance
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Adultery, Suing a Third Party
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Contact Details

BERTUS PRELLER
​MAURICE PHILLIPS WISENBERG

20th Floor, 2 Long  Street, Cape Town, 8001, South Africa
Telephone: +27 21 419 7115


​
Email: familylaw@mpw.co.za
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Twitter: @bertuspreller

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  • Home
  • Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage in Community of Property
      • Marriage out of community without accrual
      • Marriage out of community with the inclusion of the accrual
      • Universal Partnerships
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce >
      • Can I hide assets in Trust?
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • Expat South African Divorce
    • International Jurisdiction
    • Spousal Visas
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Divorce Polls
    • Ingredients of a successful relationship
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Maintenance Child COVID19
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
  • Children
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
      • International Child Custody Law South Africa
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Parenting Plans >
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Vaccinating Children Covid-19
    • Suspending Parental Rights
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
    • Facilitation
    • Living Arrangements
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Domestic Violence Amended Bill
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Domestic Violence Corona Virus
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse >
      • Economic Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Interdict Intimate photos
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment
  • Cohabitation
    • Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
    • Formalities for marriage in south africa
  • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • New Family Law Cases
    • Family Law Matters
    • Register for the Online Family Law Course
    • Online Family Law Education
  • About the Author
  • Contact
  • Charities