Single mothers and fathers, it is important to know what you and your baby’s rights are.
From the February/March 2012 issue of Your Pregnancy.
Being a single parent can be tough, and if you are pregnant and know that you will be a single mom, it can be scary. The law in South Africa has made sure that you do not have to face all of this without help. They have put legislation in place to make sure that both parents contribute to the upbringing of your child – no matter what the situation.
A parent's responsibility
The South African law states that both parents have the responsibility to contribute to maintenance of the child. This means that regardless of whether the father is utilising his right to care for the child, he will still need to contribute financially to the upbringing of the child.
Not only will the father need to contribute financially to the upbringing, but he will also be responsible for contributing towards ‘laying–in’ expenses – these are the costs that come with your pregnancy. If the maintenance is only finalised after your baby is born, the father will have to back-pay for these.
If you are the parent who will have full parental care for the child, you are responsible for caring, supporting and guiding the child, as well as taking responsibility for the child’s upbringing, health, education, safety and general well-being.
A parent's rights
As the parent, whether it be the mother or father, you have the right to care for your child, maintain contact with your child and act as a guardian for your child. However, your rights will be determined by Family Advocate Guidelines.
Alexandra Sharnock, Director at Fluxmans Attorneys, states that “every case is looked into by the Family Advocate (FA) as this ensures that the care, protection and care of the child is put first.”
In order to work out a care agreement (parent contact with the child), the FA will look at what kind of scenario would be in the best interest of your child. That could mean you have shared contact, where the father will be able to see his child at certain times, or take them on certain weekends.
The FA takes your child’s age into consideration. So if your baby is 2 months old and still breastfeeding, they probably won’t allow the father to take your baby overnight, but rather stick to day visits until your baby is older.
Regardless of whether you were married to your child’s father or not, you still have the right to seek maintenance from the father.
What is maintenance?
Alexandra explains that the term "maintenance" is a wide concept embracing among other things the provision of food, housing, clothing, medical care and education (which may include tertiary education).
It is clear that "maintenance" embraces more than the provision of the child’s bare necessities. The level at which maintenance is provided is usually determined by the standard of living of the parent and their standing in the community, which then determines the standard of living of your child.
This means that as parents, you are both obliged to provide your child with the educational opportunities that would allow him to enter the same social economic group as you are a part of.
If you were never married to your child’s father, the financial aid from the father will be to maintain your child, and not you. If you were married, then maintenance for you will be determined according to which agreement you signed when you were married.
How to get maintenance
It is important to know that you do not necessarily have to have a lawyer to get maintenance. If you would prefer to have a lawyer but can’t afford one, you can approach legal aid and they will appoint one to your case.
After your baby is born, you can approach the maintenance court (which you will find at your local magistrate court).
If your child’s birth certificate does not have the father’s name on it, the court will order a paternity test to be done. If a paternity test was done while you were pregnant (which is NOT suggested because it can be dangerous for the foetus), the results will not be binding in court, because the accuracy of it is not 100%.
Once you have submitted all your relevant documents to the court, they will give you a court date and subpoena the father to attend.
Once your maintenance is agreed, the father has to contribute his share every month. If he doesn’t, you can approach the courts again, and they will either issue a warrant for his arrest, a warrant for arrears, or a garnishee order against his employer (which means his employer will have to take the maintenance out of his salary and pay it to you directly).
A father's consent
Once your child’s father is on the birth certificate, you will need to get his consent to do the following things:
- Apply for your child’s passport or ID.
- Take your child out of the country.
- Move out of the area.
- Apply for your child to be adopted by your new partner.
If the biological father does not see your child, and you are no longer in contact with him and therefore cannot file an application for your child’s adoption, you need to advertise for the adoption in a national newspaper for 2 weeks. If he has not responded, you will be able to continue the adoption without consent.
In South Africa, these laws apply no matter what culture or custom you were married under. The only exemptions are polygamous and Muslim marriages – however, there is currently a "Muslim only" bill that may be passed in the near future which will ensure these laws apply to Muslim marriages as well.