Written by: Lesedi M
September 2024
What Are The Parental Rights And Responsibilities Of Unmarried Fathers in South Africa?
The rights and responsibilities of unmarried fathers in South Africa have evolved significantly over the years. Before the enactment of the Children’s Act 38 of 2005, as amended, it was widely accepted that the mother of a child born out of wedlock would have sole guardianship of that child, under the then-held law position due to the “illegitimate” status of such children. However, one of the objectives of the Children’s Act was to shift the focus from outdated labels to prioritising the child’s best interests, regardless of their parents’ marital status, and affording unmarried fathers equal rights to the minor children.
At Burger Huyser Attorneys, we understand the complexities surrounding parental rights and responsibilities for unmarried fathers. This article explores the legal framework, pathways for acquiring rights, and the obligations that come with parenthood.
While the Natural Fathers of Children Born Out of Wedlock Act 86 of 1997 was a significant step in recognising the rights of unmarried fathers and has since become repealed by the Children’s Act 38 of 2005 that has since become the only legal framework governing these rights. The aforesaid Act has established the position that unmarried fathers can now acquire parental rights and responsibilities under Section 21 of the Act, where the father can actively demonstrate commitment to the child’s well-being and upbringing.
The Children’s Act 38 of 2005, as amended, provides access for a father to their child, and this Act provides the Court with the legal authority to grant a father the following rights:
- Care: Providing a safe and nurturing environment for the child.
- Contact: Maintaining a meaningful relationship with the child.
- Rights and Responsibilities including Guardianship: Participating in significant decisions affecting the child’s life.
- Maintenance: Financially supporting the child.
What Is The Acquisition Of Parental Rights And Responsibilities In Respect Of Unmarried Fathers?
Unmarried fathers can acquire parental rights and responsibilities in one of three ways:
- Automatically, under specific circumstances outlined in Section 21 of the Children’s Act 38 of 2005, as amended.
- Through an agreement with the mother.
- By court application, if the first two methods are unsuccessful.
How Does An Unmarried Father Automatically Acquire Parental Rights And Responsibilities?
Section 21 of the Children’s Act 38 of 2005 provides that an unmarried biological father automatically acquires parental rights if:
- He is living with the child’s mother in a permanent life partnership when the child is born.
- Regardless of cohabitation, the father:
- Consents to or successfully applies to be recognised as the child’s father or pays damages according to customary law.
- Contributes, or attempts in good faith to contribute, to the child’s upbringing and maintenance for a reasonable period.
What Are The Options For Unmarried Fathers Who Can Not Automatically Acquire Parental Rights And Responsibilities?
Unlike unmarried fathers, married fathers automatically share equal rights and responsibilities with the mother under Section 20 of the Children’s Act 38 of 2005, as amended. Unmarried fathers who do not meet the criteria for automatic rights can either agree with the mother of the children to acquire parental rights or acquire rights through a court application. Under Section 22 of the Children’s Act 38 of 2005, as amended, this type of agreement must be endorsed with the Family Advocate or formalised through a court order in a High Court or Children’s Court.
If neither automatic rights nor an agreement is achievable, an unmarried father can apply to the court for:
- Care and Contact (Section 23 of the Children’s Act 38 of 2005): Applications can be made in the Children’s Court, High Court, or Divorce Court (if applicable).
- Guardianship (Section 24 of the Children’s Act 38 of 2005): Applications must be made in the High Court or a Children’s Court.
- Acquiring Rights and Responsibilities (Section 26 of the Children’s Act 38 of 2005): Whereby one party and request a paternity test to confirm paternity.
- Acquiring Rights and Responsibilities (Section 21 of the Children’s Act 38 of 2005): Whereby an unmarried father must satisfy the requirements prescribed by the Act in order the be declared having rights and responsibilities.
How Do Unmarried Fathers Acquire Rights And Responsibilities Through An Agreement?
In terms of Section 22 of the Children’s Act 38 of 2005, an unmarried father who does not meet the requirements of Section 21 of the Children’s Act 38 of 2005 can acquire rights and responsibilities through an agreement with the mother of the child. The agreement must be endorsed by either the family advocate or an order made with the High Court or Children’s Court.
What Are The Rights And Responsibilities Acquired Through A Court Application?
Where an unmarried father has been unsuccessful in obtaining rights and responsibilities, automatically or by way of an agreement, the outlined sections above of the Children’s Act 38 of 2005 provide for a third option. Section 23, specifically and read with Sections 21, 24 and 26, is an application in terms the Children’s Act to obtain the rights to care and contact in respect of a minor child brought by an interested party. Such an application can either be instituted in the Children’s Court or the High Court.
The court takes the following into account when considering an application:
- the best interests of the child;
- the relationship between the applicant and the child, and any other relevant person and the child;
- the degree of commitment that the applicant has shown towards the child;
- the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child;
- any other fact that should, in the court’s opinion, be taken into account.
South African law has made significant strides in recognising unmarried fathers’ rights while prioritising the child’s best interests. Whether through automatic rights, agreements, or court applications, the Children’s Act 38 of 2005 provides pathways for fathers to assume their parental responsibilities.
At Burger Huyser Attorneys, our family lawyers in South Africa are dedicated to helping fathers navigate the legal process to secure their parental rights. If you’re an unmarried father seeking guidance on your responsibilities or assistance with court applications, our experienced family law attorneys are here to help. Contact us today for personalised legal support and to ensure that you and your child’s rights are protected.
Contact Burger Huyser Attorneys, and book a consultation.
To speak to one of our experienced attorneys in South Africa for immediate assistance, contact us on the numbers below:
Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358; Pretoria call 064 548 4838;
Centurion call 061 516 7117; Alberton call 061 515 4699; Bedfordview call 061 536 3223
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
