(Un)married with children?

Unmarried with children custody in South Africa

What are the rights and responsibilities of unmarried mothers and fathers?

We’ve written a lot about the rights…and responsibilities…of parents in the event of divorce. As divorce attorneys, you would expect this of us. But SD Law is not just a firm of divorce lawyers. We are family lawyers. And families come in all shapes and sizes – and legal entities. A single mother and her child are just as much a family as the “married with two children” household down the street, or the widowed father bringing up two teenagers. If you are not married to the mother or father of your child, what are your rights in law? This article assumes biological parentage of the child and does not deal with a child of a same-sex couple or an adopted child.

Unmarried with children custody in South Africa

Unmarried parents’ rights

An unmarried mother automatically acquires parental rights and responsibilities for her child. The Children’s Act 38 of 2005 also provides for the parental responsibilities and rights of unmarried fathers when a child is born out of wedlock. Parental responsibilities and rights are fourfold: care; contact; guardianship; and maintenance or financial support. However, unmarried biological fathers have only two of these parental responsibilities and rights, namely contact and maintenance. Their  responsibilities and rights do not include guardianship and care.

Unmarried fathers – ways to acquire parental rights and responsibilities

Previously all unmarried fathers had to apply to the courts for rights to their children. However, the current Act allows for some unmarried fathers automatically to acquire parental responsibilities and rights, in one of two ways. The first is living with the mother in a permanent life partnership at the time of the child’s birth. Alternatively, the man must consent to be identified as the father of the child (or pay damages in terms of customary law) and contribute to, or attempt to contribute to, the child’s upbringing for a reasonable period.

An unmarried father can also acquire parental rights and responsibilities by agreement with the mother of the child. A parenting plan, describing and defining all the parental rights and responsibilities, must be in the prescribed format with correct particulars. The agreement must be registered with the Family Advocate’s Office or made an order of the High Court or the Children’s Court. If the parents are unable to reach agreement, the father can apply to court for rights and responsibilities. If the unmarried father is only applying for care and contact rights, the application can be made through the Children’s Court. If the application is for guardianship, the High Court needs to be involved. The High Court, as the upper guardian of all minors, is the only court that can grant permission for guardianship.

Best interests of the child

When the court hears an application for parental rights and responsibilities, the most important factor is the best interests of the child. The relationship between the unmarried father and the child, his commitment towards the child and their upbringing, and the extent of his financial contribution are some of the other factors the court will consider. An unmarried biological father has a legal duty to maintain the child even if his access rights are compromised. The two are separate in South African law. The duty to maintain the child is the only parental responsibility that automatically applies to the unmarried father, regardless of the circumstances.

The child’s surname

Section 10 of the Births and Deaths Registration Act refers to the notice of birth for a child born out of wedlock and states that the child is to be given the mother’s surname. If the couple wishes to give the child the father’s surname, they need to make a joint request and the father must acknowledge in writing that he is the father.

We’ll help you realise your rights

If you are an unmarried parent and want advice on your rights and the law, we can help. We are family lawyers in Cape Town with extensive experience of child care and contact, cohabitation, wills and estate planning and other relationship and family matters. We now offer online consultations. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za today, and we’ll call you back.

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The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.

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