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Simon Dippenaar
Admitted Attorney of the High Court of South Africa.
B.Bus.Sci (UCT), LLB (UCT), PDLP (UCT)
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Unmarried father – know your rights

unmarried father

I’m not married to the mother of my child. What are my rights as an unmarried father?

What are my rights as an unmarried father?

Traditionally, two people fell in love, got married, and then (usually but not always) had children. In that order. Pregnancy outside of wedlock carried stigma and young women were often sent away to have the baby, who might then be raised as the “child” of the grandparents. An unmarried father rarely claimed a right to be involved in the child’s life.

But that was then and this is now. In the post-millennial era, many couples choose to start a family before or without getting married. Some of these relationships stand the test of time without legal sanction. Others, just like some marriages, break down. Where the parents and child/ren live as a family unit, the rights of each parent individually rarely come under scrutiny.

However, what are the rights of the father if the unmarried couple splits up, either before the child is born or while the child is a minor, or indeed if conception occurs as part of a casual encounter? While we always strive to be gender-neutral in our approach, the rights of the mother in law are incontrovertible, even if the child’s primary residence is the father’s home, and so this article deals with the rights of the father.

Children’s Act 2005

Prior to 2007, when the Children’s Act of 2005 came into force, an unmarried father did not have parental rights and responsibilities in respect of his child/ren. In order to secure those rights, he would have to approach a court. We know one couple who, although still together after 30 years, never wanted to marry. They had two children and fully intended to raise their daughters together. However, they had the wisdom to recognise that sometimes relationships don’t last. Mom suggested that Dad adopt his own children. This ensured, should there ever be acrimony between them in the future, Dad’s rights to his girls would not be compromised. Fortunately that card never had to be played. And thankfully fathers don’t have to go to these absurd lengths today.

The Children’s Act is a progressive piece of legislation that seeks to align the rights of children with the Constitution. One critical component of the Act is the definition of parental responsibilities and rights. The Children’s Act is built on the principle of the best interests of the child. These come before the interests of the parents, guardian, or anyone else. In determining the rights of the parents, the interests of the child are paramount.

What do we mean by “parental rights”?

The Children’s Act defines parental rights and responsibilities as four discrete activities. They are:

To care for the child

To maintain contact with the child

To act as guardian of the child

To contribute to the maintenance of the child

In this article we are focusing on rights, but will expand on the implications for responsibilities in a future article.

Mom’s rights

This is easy. The biological mother of a child has full parental rights and responsibilities in respect of the child, whether or not she is or ever was married to the child’s father. Case closed. These rights may be withdrawn or compromised by court order if some aspect of her behaviour is not in the child’s best interests, but these are her inherent rights as biological mother.

Dad’s rights

The Children’s Act recognises that children need both parents, whether married or not, and it seeks to grant parental rights to unmarried dads without too much complexity. The biological father of a child has full parental rights and responsibilities if he’s married to the child’s mother or was married to the child’s mother at conception, birth, or any time between the two events. However, we’re discussing unmarried fathers.

An unmarried biological father automatically acquires full parental responsibilities if:

When the child is born, he and the mother are living together as life partners, OR

If he is not living with the mother, he satisfies these conditions:

He consents to being or applies to be identified as the child’s father, or he pays damages in terms of customary law

He contributes or has attempted to contribute to the child’s upbringing and towards expenses in connection with the maintenance of the child for a reasonable period

As long as he meets these requirements, the unmarried father automatically acquires parental rights and responsibilities.

Same-sex relationships

Same-sex marriages are legal in South Africa, and the laws that apply to children of same-sex marriages are the same as those that apply to children in heterosexual marriages. In a future post we will look at the circumstances surrounding the rights of unmarried parents in same-sex relationships, and at surrogacy.

If you have been denied your rights…

Despite legal rights, some fathers have difficulty maintaining contact with a child when estranged from the mother. This can be due to lack of awareness of rights or obstructive behaviour by the other parent. If you need help to enjoy your full parental rights and responsibilities, call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za. We believe it is in the best interests of the child to have a healthy relationship with both parents and we will help you achieve that.

What about maintenance?

We’ll look at the laws surrounding child support and maintenance in a future article.

Further reading

For more about what happens upon death when unmarried click here.

For more about interim maintenance for children, that is pending divorce, click here.

For more about relocating with children post divorce click here.

For information about taking a child abroad click here.

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