Unmarried Fathers’ Rights
unmarried_father

Introduction

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 or not 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 38 of 2005 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.

How can we help?

With our experience, we understand the difficulties faced by unmarried parents. Whether you are an unmarried father wishing to have care of and contact with your child, or an unmarried mother seeking maintenance from the child’s father, we can assist you to achieve this. Our aim is always to attempt to resolve family issues through mediation or collaborative law. Section 33 of the Children’s Act specifically mandates mediation in circumstances where there is no parenting plan in place and where parents are having difficulty in exercising their parental responsibilities and rights. However, where this is unachievable, we can assist with the appropriate court proceedings.

Unmarried fathers’ rights

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 or not 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 38 of 2005 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.

How can we help?

With our experience, we understand the difficulties faced by unmarried parents. Whether you are an unmarried father wishing to have care of and contact with your child, or an unmarried mother seeking maintenance from the child’s father, we can assist you to achieve this. Our aim is always to attempt to resolve family issues through mediation or collaborative law. Section 33 of the Children’s Act specifically mandates mediation in circumstances where there is no parenting plan in place and where parents are having difficulty in exercising their parental responsibilities and rights. However, where this is unachievable, we can assist with the appropriate court proceedings.

For direct answers to your specific personal questions, please contact us directly.

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