Fathers Rights Article 1: The rights of unmarried fathers
In our previous article, we briefly discussed miscellaneous matters regarding a divorce which concluded the series.
In this article, we shall consider the rights of unmarried fathers to their children in instances where the parties were never married.
The biological father of a child who does not have parental responsibilities and rights in respect of the child by being married to the mother acquires full parental responsibilities and rights in respect of the child if:-
- if at the time of the child's birth he is living with the mother in a permanent life-partnership; or
- if he, regardless of whether he has lived or is living with the mother-
(a) consents to be identified or successfully applies in terms of Section 26 to be identified as the child's father or pays damages in terms of customary law;
(b) contributes or has attempted in good faith to contribute to the child's upbringing for a reasonable period; and
(c) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.
In regards to 2(a) above Section 26 refers to when a father may apply for the amendment of the child’s birth certificate to include him as the father or when an application is made to the court for an order confirming his paternity. Both have their requirements that must be met before it can be carried out.
Please note that the above does not affect the duty of a father to contribute towards the maintenance of his child.
If there is a dispute between the biological father and the biological mother of a child about the fulfilment by that father of the conditions set out above, the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified people. The outcome of which may be reviewed by a court.
The above does not apply to any person who is biologically related to a child by reason only of being a gamete donor for purposes of artificial fertilisation.
It is very important to take note that while the Children’s Court is empowered to grant access and visitation rights to unmarried fathers only the High Court, as upper guardian of all minors having the power to make declaratory orders, may make an order in regards to the paternity issues referred to above. Due to this, it is highly advisable that you consult with your attorney.
The rights and responsibilities that can be claimed by the unmarried father may consist of the following:-
to maintain contact with the child; and
to act as guardian of the child.
In the event that the non-custodial parent is also the co-guardian they have the right to the following decisions in relation to any minor child:
administer and safeguard the child's property and property interests;
assist or represent the child in administrative, contractual and other legal matters; or
give or refuse any consent required by law in respect of the child, including-
- (a) consent to the child's marriage;
- (b) consent to the child's adoption;
- (c) consent to the child's departure or removal from the Republic;
- (d) consent to the child's application for a passport; and
- (e) consent to the alienation or encumbrance of any immovable property of the child.
- ***Kindly note that the contents of this article are intended for information purposes only and does not constitute legal advice. Please consult an attorney.