Unmarried Fathers

In terms of South African law, a child’s biological mother automatically obtains full parental responsibilities and rights. Furthermore, the biological father of a child, if he is married to the child’s mother, or if he was married to the child’s mother at the time of conception, birth or any time in between, obtains full responsibilities and rights. Parental responsibilities and rights, as defined by law, are the responsibility and right to care for the child, maintain contact with the child, act as guardian of the child and contribute towards the child’s maintenance.

However, where a father was not married to the child’s mother around the time of conception and/or birth, he can still obtain these rights if he was living with the mother in a permanent life partnership at the time of the birth, or if he agrees to be identified as the child’s father on the birth certificate (or pays damages in terms of customary law), and he has contributed to, or attempted to contribute towards, the child’s upbringing and maintenance expenses for a reasonable period.

Legal procedure in case of disputes
If there is a dispute between the unmarried mother and father of the child about whether the father has acquired parental responsibilities and rights, such dispute must be mediated by a family advocate, social worker, social service professional or other suitably qualified person, prior to the parties approaching the court. Where a father chooses not to acquire parental responsibilities and rights, he still has the obligation to maintain his biological child.

An unmarried biological father may also apply for an amendment to the registration of the birth of the child identifying him as the father of the child, if the mother consents to the amendment. Where the mother refuses to give such consent, or cannot consent due to mental illness, or where she cannot be located, or is deceased, the father may bring an application to the high court for an order confirming his paternity.

Where a purported father denies paternity and refuses to contribute towards the maintenance of a child, and it can be proved that the man had sexual intercourse with the mother of the child at any time when that child could have been conceived, that person is presumed to be the father of the child unless there is contradictory evidence. Once paternity has been established, the father of the child is obligated to contribute towards the child’s maintenance. The maintenance amount payable is calculated based on the financial means of the parents and the reasonable needs of the child.

The Children’s Act made big changes in terms of the rights of unmarried biological fathers to automatically obtain responsibilities and rights. The new legislation, accordingly, supports and protects fathers who want to be involved in their children’s lives.

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