'I fell pregnant as the result of adultery. Now the biological father ran away. Do I have a right to take him to court for maintenance?'

The issue of maintenance is unfortunately not as straight forward as one might think, and sometimes parents find themselves in complicated situations. 

A reader reached out to Parent24 with a tricky question recently, so we approached an expert for advice.

Here's the question, and answer below:  

Dear Parent24,

I committed adultery after 7 years of marriage, as the result of not conceiving from hubby. By then my marriage was already a mess. I fell pregnant as the result of the adultery.

Although hubby doesn't know that the baby is not his, I always make it a point that I'm the one who is supporting the baby 95%.

I do not like hubby to spend for the child and this was made possible by the support from the biological father.  

Now the biological father ran away. Do I have a right to take him to court for maintenance?  

Anonymous

Luzanne Kinnear, Legal Professional at LAW FOR ALL, sympathises with the reader, telling us that she can absolutely understand why the reader may be overwhelmed and somewhat confused at this point - it’s a lot to deal with.

But, Kinnear says, firstly, she is doing the right thing by prioritising the well-being of her child.

"Of course, raising a child is no walk in the park and you definitely need as much support - financially and emotionally - as possible. We would suggest having an open and honest conversation with your husband about who the father of the child is," Kinnear advises.

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She adds that the reader could suggest couple’s counselling.

"This will, by no means, be easy, but think of it being a united front for sake of the child," Kinnear says.

Children’s rights are protected in South Africa, and they have the right to family care/parental care, basic nutrition, shelter and basic health, among others. 

"That said, even if you and your husband have the means to look after and raise the child without financial assistance, the biological father is still legally obligated to pay child maintenance. And, yes, you definitely have the right to take him to Maintenance Court," she clarifies. 

According to the law, a child has the right to be maintained by both parents, so the biological father still has to support his child.

The court might require the father to take a paternity test to prove that he is the biological father, and he will be liable for the costs of this.  

• Maintenance money: to some, more divisive than divorce
  
• A single mom shares her story: 'In my experience, the parent that refuses to pay maintenance can easily get away with it forever'
• "If she no longer wants to have contact with him, that is her choice": A mother opens up about why shared custody isn't the best for her child

"It’s also worth knowing that there have been amendments to the Maintenance Amendment Act. The new law will make it difficult for habitual child maintenance defaulters to access any form of credit," Kinnear told Parent24.

In essence, continuous refusal or neglecting to pay will result in a credit record blacklisting.

"What’s more, the updated amendment will make it easier for payment dodgers to be tracked since maintenance officers will be allowed to use cell phone service providers to assist them in tracking defaulters," she added. 

She says that the reader should take comfort in knowing that the law is on her side.

"Lastly," she adds, "as a legal side note: your husband is also legally entitled to hold you liable for any costs he may have incurred while raising the child thinking it is biologically his." 

Because this is a complicated matter, it’s best to speak to a lawyer and get expert advice on the way forward.

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