Unmarried Parents and Child Law in South Africa
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:
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:
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:
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:
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.
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.
