Unmarried? Know your rights
It’s important to know where you and your baby’s father stand with SA’s Children’s Act, especially if you’re not married. You both have certain rights and obligations, and familiarising yourself with the basics could save you a great deal of trouble

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 to 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 is of paramount importance – more so than the rights of the parent.

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 responsibility of the child, whether she’s married or unmarried.
  3. The biological father of a child has full parental responsibility 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 may ask a court of law to grant him full parental responsibilities if he:
  • at the time of the child’s birth, is living with the mother in a permanent life partnership, or
  • 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, or
  • contributes or has tried to contribute to the child’s maintenance and upbringing 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 and before the birth of a child: they’re both equally responsible for that child. Nothing has changed as regards the law concerning minor children.

Full parental responsibilities and rights

In legal terms, what does the phrase “full parental responsibilities and rights” actually mean and include?

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

Fathers have more rights now

There are various other matters which a parent or guardian would have to administer, safeguard and consent to for the child.

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

The custodian parent would be vested with making all of the day-to-day 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.

The parents now have joint parental responsibilities and rights, and all major decisions relating to the minor child need to be taken by the parties jointly, which is a far healthier situation for the child.

And if my child is illegitimate?

When a child’s parents are not married, the mother remains the primary caregiver of the child and the father can apply for rights if he complies with one of the requirements mentioned above. Again, the natural father of a child born of unmarried parents still has to pay maintenance for a child under 18 years if age, whether he wants to or not.

What if the father won’t pay?

Importantly, the biological father is responsible for the payment of maintenance for the child, regardless of whether he chooses to apply for parental responsibility or not. If there is a dispute between the child’s parents about maintenance, the matter has to be dealt with by a family attorney, social worker, social services professional or other suitably qualified person.

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

Some women find themselves in situations where they are involved in relationships, fall pregnant out of wedlock and then discover that their partners want nothing to do with them. They choose to have the child, and their partners attempt to avoid responsibility.

In situations like these, the mother is entitled to approach the maintenance court for the area she lives in to claim maintenance from the father of the child. The court will make an order for an appropriate amount. There are people at the court to assist the mother in completing the necessary documentation and serving the papers on the father to appear at court.

Once an order has been made for the payment of such maintenance, and the father fails to pay the maintenance, he could be sent to prison for failing to do so. When the father of an illegitimate or even a legitimate child is unable to pay maintenance for a child, the court may look to the grandparents of the minor child on the father’s side, 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 there are paternal grandparents who are financially able, the mother could ask the court to get the grandparents to give a good reason why they should not be ordered to pay maintenance for the minor child.

Do you have a cohabitation contract?

It is extremely important for women 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, as such.

Even if you 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 gives you the same rights as a married woman, even if you’re not married. Do it for your peace of mind, and your children’s security.

Adam and Steve?

In South Africa, recently, in terms of the Civil Union Act which became effective on 1 December 2006, same-sex marriages are legally recognised. 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 out of wedlock, the child will take the mother’s surname, unless the father of the child consents to having his surname being 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.

However, if there is no such relationship then it would make sense for the child to have the mother’s surname to avoid confusion. It’s an entirely personal decision. If you gave your child the father’s surname, then later came to regret it and wished to change the child’s surname, you need the father’s permission, or the Department of Home Affairs will refuse.

You need permission to go overseas with the kids

When a child born in wedlock is taken out of the country, in the company of only one parent, it is necessary to have the written consent of the parent who stays behind. This becomes especially important in divorce cases, where the spouse who remains behind in South Africa may be concerned that the spouse who is travelling might be trying to kidnap the child.

If the child is born out of wedlock it depends on whether or not the father of the child has parental responsibilities and rights and, if so, then his written consent will also be required.

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 guardians?
  • 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.
  • It is important to appoint as your Executor and Trustees people whom 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 whom you do not know may be appointed to manage your affairs.

Outdated terminology

Courts used to use words like “custody” and “access” when they referred to children’s rights. The terms which are now used are “care” and “contact.”

A parent is now no longer a “custodian” but may provide the “primary place of residence” for a minor child, and have the “care” of the child.

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. Please feel free to keep posting your comments – another parent in the same situation may be able to answer you or offer support. All the best.

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