In modern South Africa, family structures are evolving, and many couples choose to have children out of wedlock. While married fathers automatically acquire full parental rights and responsibilities, unmarried fathers may face challenges in securing their rights to care for and maintain a relationship with their child. The Children’s Act 38 of 2005 provides a framework to ensure that the best interests of the child remain paramount, regardless of the parents’ marital status.
When can an unmarried father obtain parental rights and responsibilities?
Under Section 21 of the Children’s Act, an unmarried father does not automatically acquire full parental rights and responsibilities. However, he may obtain these rights if he meets certain conditions:
- Cohabitation at the time of birth – If the father was living with the child’s mother in a permanent life partnership when the child was born, he automatically acquires parental rights and responsibilities.
- Fulfilling parental obligations – If the father was not cohabiting with the mother at the time of birth, he can still obtain parental rights if he:
- Consents to be identified as the child’s father (or pays customary damages);
- Has contributed or attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
- Has contributed or attempted in good faith to contribute to the child’s financial maintenance for a reasonable period.
If the biological mother disputes the father’s claim to these rights, the father may need to apply to court for recognition.
What parental rights and responsibilities can an unmarried father obtain?
- Care – The right to have the child live with him and to make day-to-day decisions about the child’s upbringing.
- Contact – The right to maintain a personal relationship with the child, which includes visitation rights.
- Guardianship – The right to make important legal decisions about the child, such as applying for a passport, consenting to marriage, or approving medical procedures.
- Maintenance – The duty to provide financial support for the child.
It is important to note that an unmarried father has a legal obligation to pay child maintenance, even if he does not have care or contact rights. The obligation to maintain a child is separate from access or custody rights and cannot be waived.
How can an unmarried father obtain parental rights?
If an unmarried father does not meet the automatic requirements under Section 21, he can still obtain parental rights through the following legal avenues:
- By agreement with the mother – The father and mother can enter into a parenting plan, which must be in writing and registered with either the Family Advocate’s Office or made an order of the Children’s Court or the High Court. The parenting plan should outline the division of parental rights and responsibilities, ensuring both parents remain involved in the child’s life.
- By court application – If the mother refuses to grant the father rights, he can apply to the courts.
Speak to a Family Law expert
If you have any questions about your rights as an unmarried father or need guidance with parenting plans, maintenance or access to your child, our experienced Family Law team is here to help. We’re committed to protecting your interests and ensuring the best outcomes for you and your child.
For legal advice about Family Law, Divorce and Matrimonial Law
Heynes Kotze heynes@abgross.co.za
Corinne Petersen corinnep@abgross.co.za
Disclaimer
The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.