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Unmarried? Know your rights
It’s important to know where you stand with South Africa’s Children’s Act, especially if you’re not married. Both parents have certain rights and obligations, and familiarising yourself with the basics could save you a great deal of trouble.
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*Updated 20 October 2017

On 1 July 2007, the new Children’s Act No. 38 of 2005 came into effect.

The point of the new Children’s Act is to improve and define the rights of children in line with our country’s Constitution. Part of what this legislation aims to do, is define parental responsibilities and rights. 

When the legislation was being drafted, experts used as their framework something called “The Best Interests of the Child Standard.” This means that in all matters concerning the care, protection and wellbeing of a child, the child’s best interests are of paramount importance – more so than the rights of the parent.

Also read:

In a nutshell

1. A child, male or female, becomes a major upon reaching 18.

2. The biological mother of a child has full parental rights and responsibilities in respect of the child, whether she’s married or unmarried.

3. The biological father of a child has full parental rights and responsibilities in respect of the child if he’s married to the child’s mother, or if he was married to the child’s mother at the time of the child’s conception, birth or any time between the child’s conception and birth.

4. An unmarried biological father automatically acquires full parental responsibilities in respect of the child if:

a. at the time of the child’s birth, he is living with the mother in a permanent life partnership, OR

b. if he, regardless of whether he has lived or is living with the mother:

i. consents to be identified as the child’s father, or successfully applies to be identified as the child’s father, or pays damages in terms of customary law;

ii. contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; AND 

iii. contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

What does this mean?

It doesn’t matter whether the parents are married and they conceive a child, or whether they marry after conception but before the birth of a child, or whether they remain unmarried. If the parents have automatically acquired full parental rights and responsibilities in terms of the Children’s Act, they’re both responsible for that child, unless a court orders otherwise.

When a child’s parents are not married, the father still automatically acquires parental rights and responsibilities if he meets the requirements set out above. If the mother disputes that the father has fulfilled these requirements, the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person (such as an attorney), the outcome of the mediation may be reviewed by the court at the parent’s request.  

Full parental responsibilities and rights

In legal terms, what does the phrase “full parental responsibilities and rights” actually mean? It is the responsibility and right:

1. To care for the child; and 
2. To maintain contact with the child; and 
3. To act as guardian of the child; and 
4. To contribute to the maintenance of the child.

Fathers have the same rights and responsibilities now

Under the old dispensation, where parties were divorced, one parent (usually the mother) would be awarded custody of a minor child and the other parent (usually the father) would be entitled to rights of access. 

The custodian parent would be vested with making all of the day-to-day and major decisions of the minor child including which school the child would attend, what religion the child would practice, where the child would reside and so on.

This is now no longer the case.

Both parents now have full parental responsibilities and rights, even after divorce or if they are no longer dating, unless a court orders otherwise. 

All major decisions relating to the minor child need to be taken after due consideration of both parents’ views and wishes, and the views and wishes of the child, bearing in mind the child’s age, maturity and stage of development, which is a far healthier situation for the child.

If the parents get divorced or break up, the practical schedule of where the child spends his/her time (called “primary residence” and “contact”) is decided based on the "best interests" standard set out in the Children’s Act. 

And what about maintenance? 

According to family law attorney Maresa Kurz from Clarks Attorneys, the law states that both parents have a responsibility to pay reasonable maintenance for their child, in accordance with their respective means. The responsibility continues until the child is (or reasonably should be) self-supporting. 

This remains the case, even if the unmarried father does not meet the criteria to have parental rights - he still needs to pay maintenance, whether he wants to or not. In other words, even if the mother had the child against the father's will, he will still be held accountable for the child's maintenance.

This applies regardless of whether the child was born before or after the commencement of the new Act.

What if a parent won’t pay?

If there is a dispute between the child’s parents about maintenance, the parties may approach a family law attorney, social services professional or other suitably qualified person to attempt to negotiate a maintenance agreement.

If the one parent still refuses to pay reasonable maintenance when they are able to pay, the other parent may approach the maintenance court in the area the child lives in to claim maintenance. The court will make an order for an appropriate amount. There are people at the court (called maintenance officers) to assist the parent in completing the necessary documentation and serving the papers on the other parent to appear at court.

Once an order has been made for the payment of such maintenance, it must be adhered to, unless and until varied by the court. The order will be varied only if there is a significant change in either parent’s circumstances. If a parent against whom an order is granted fails to pay the ordered maintenance, the other parent may return to the maintenance court to lodge a request for enforcement of the order. This could include a garnishee order, or a warrant for the sheriff to have some property sold at auction to pay the arrears, or criminal charges and the non-paying parent being committed to prison. 

When parents are indigent and genuinely unable to pay maintenance for a child, the court may look to the grandparents of the minor child, to decide whether they are capable of paying maintenance for that child.

So, let’s say there’s a situation where, for example, the father of a minor child is killed in an accident and he doesn’t leave behind any money, and there are paternal grandparents who are financially able, the mother could ask the maintenance court to order the paternal grandparents to pay maintenance for the child unless they can give a good reason why they should not be ordered to so pay.

Do you have a cohabitation contract?

It is extremely important for couples to know their rights. Not just in relation to children, but in relation to their rights generally.

For example, did you know that in South Africa there is no law governing cohabitation relationships? Therefore, in a situation where a couple who may have lived together for many years, when that relationship ends, there are no “common-law husband or wife” rights.

Even if you, for example, lived in your boyfriend’s house for 15 years, and have several children together, if that relationship suddenly ends, you might find yourself without a home, unless there’s a contract in place.

You can approach any legal aid clinic or lawyer to help you draw up a simple document that defines and protects your cohabitation rights, even if you’re not married. Do it for your peace of mind, and your children’s security.

Children of same-sex marriages

In terms of the Civil Union Act, which became effective on 1 December 2006, same-sex marriages are legally recognised in South Africa. The laws that apply to children in heterosexual marriages also apply to children in same-sex marriages.

In a recent decision in South African courts, the Department of Home Affairs was ordered to register both parents in a same-sex marriage as the parents of a minor child, to enable a divorce to proceed and to ensure that the parental responsibilities and rights could be properly regulated.

Whose surname does the baby get?

If a child is born to unmarried parents, the child will take the mother’s surname, unless the father of the child consents to having his surname registered on the birth certificate.

If the parties are living together in a marriage-like relationship, then the parents may wish for the child to have the father’s surname.

It’s a decision the unmarried mother may make, in terms of the Births and Deaths Registration Act, and it is a personal decision that couples are encouraged to make jointly, in the child’s best interests.

If a mother gave a child the father’s surname, and then later came to regret it and wished to change the child’s surname, the mother would need the father’s permission, or the Department of Home Affairs will refuse.

You need permission to go overseas with the kids

When both parents have full parental rights and responsibilities and they wish to travel or relocate with their child out of the country, they must have the prior consent of the other parent, regardless of whether or not the parents are married (and whether or not the father is registered on the birth certificate). This consent should not be unreasonably withheld by the other parent. 

Travelling without the consent (or a Court Order dispensing with the consent) is tantamount to abduction.

Parents must also make sure they comply with the Immigration Act Regulations, which they can read more about on the Department of Home Affairs website.

A will is extremely important

If you have children, the issues in a will which need to be dealt with are:

  • Who should be their legal guardian if both parents pass before they reach 18 years of age (bearing in mind the other parent will retain full parental rights and responsibilities)?
  • Who will they live with (which does not have to be the same person as the guardian)?
  • Who will be responsible for their education?
  • Who will be responsible for managing your financial affairs?
  • It is important to decide who to appoint as Trustees, should you include a testamentary Trust.
  • It is important to appoint as your Executor and Trustees people who you know personally and not, for example, huge financial institutions.
  • If you die without a Will, then your Estate will be wound up as an intestate Estate and a person who you do not know may be appointed to manage your affairs

Outdated terminology

Courts used to use the legal concepts of “custody” and “access” when they referred to children’s rights, but this is now outdated. 

The terms which are now used are “care” and, when talking about the practical schedule of where the children will live, “primary residence” and “contact.”

Comments: please note

Dear parent, thanks so much for your comments and sharing your stories. Please note we don't have lawyers who can respond, either personally or online. If you need professional advice, you can find a list of family lawyers here: http://www.coparenting.co.za.

All the best.

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