Parental Power: How unmarried fathers can claim their rights in South Africa

Introduction 

In South Africa, the evolving structure of families has brought important legal developments concerning the rights of unmarried fathers. Historically, fathers who were not married to the mother of their child faced significant legal challenges in asserting their parental rights. 

However, with the enactment of the Children’s Act 38 of 2005, a more progressive approach has been adopted, which recognises the crucial role that both parents play in the upbringing of a child, regardless of their marital status. 

This article explores the legal rights and responsibilities of unmarried fathers under the Children’s Act, clarifying the circumstances under which they can acquire full parental rights and responsibilities, and highlighting the importance of the child’s best interest as the guiding principle in all matters concerning parental rights. 

What are parental rights and responsibilities? 

In terms of Section 18(2) of the Children’s Act 38 of 2005, the associated rights and responsibilities which we speak of are traditionally the following: 

1. to care for the minor child; 

2. to maintain contact with the child; 

3. to act as the guardian of the child; 

4. to contribute to the maintenance of the child. 

   
   

What was the position of the unmarried father prior to the Children’s Act? 

Traditionally, it was accepted that only the mother of a child acquired parental rights and responsibilities if she was unmarried to the biological father at the time of the child’s birth. The unmarried biological father held no parental rights and responsibilities over the child and would have to approach the court and prove on reasonable grounds why there would be a need for him to be granted parental rights and responsibilities. 

What is the position of the unmarried father in terms of the Children’s Act? 

As stated above, the Children’s Act is a progressive piece of legislation that recognises the role that both parents need to play in a child’s life whether they are married or unmarried. However, this does not necessarily mean that an unmarried father will automatically qualify for parental rights and responsibilities over his child. 

In terms of Section 21(1) of the Act, the biological father of the child who does not have parental rights and responsibilities in respect of his child, will acquire full parental rights and responsibilities in respect of his child if the following conditions are met: 

1. If at the time of the child’s birth he is living with the mother in a permanent life-partnership; or 

2. If he, regardless of whether he has lived or is living with the mother – 

3. 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; 

4. contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and 

5. contributes or has attempted in good faith to contribute towards the expenses in connection with the maintenance of the child for a reasonable period. 

   
   

Importantly, section 21(2) of the Act makes it clear that section 21 will never absolve a father from contributing towards the maintenance of the child. 

Furthermore, section 21(3) of the Act provides for the resolving of a dispute between the biological father referred to in section 21(1), and the biological mother of a child concerning the fulfilments of the conditions set out above by the biological father. The matter may then be referred to mediation by the Family Advocate, Social Worker, Social Service Professional, or any other suitably qualified person. 

What remedies are available to a father if they do not meet the conditions in terms of Section 21(1)? 

Section 22 of the Children’s Act makes provision for a parental rights and responsibilities agreement to come into effect. Accordingly, the mother of a child or other person who has parental rights and responsibilities in respect of a child may enter into an agreement that will provide for the acquisition of these rights and responsibilities which are clearly set out in the agreement with the following persons: 

1. the biological father of a child who does not have parental rights and responsibilities in terms of either section 20 or 21 or by court order; or 

2. any other person having an interest in the care, well-being and development of the child. 

   
   

In terms of section 22(2) of the Act, the mother or other person who has parental rights and responsibilities over a child may only confer by agreement upon a person as mentioned above those parental rights and responsibilities which she or that other person has in respect of the child at the time of conclusion of the agreement. 

Furthermore, the parental rights and responsibilities agreement will not automatically take effect. It will only take effect in terms of section 22(4) if the following is met: 

1. it is registered with the Family Advocate; or 

2. Made an order of the High Court, a divorce court in a divorce matter or the children’s court on application by the parties to the agreement. 

   
   

Section 23 of the Act, affords any person having an interest in the care, well-being or development of a child to approach the High Court, a divorce court in divorce matters or the children’s court for an order granting to the applicant, on such conditions as the court may deem necessary the following: 

1. contact with the child; or 

2. care of the child. 

   
   

However, the court before granting an award as contemplated above will have to consider the following factors: 

1. the best interests of the child; 

2. the relationship between the applicant and the child, and any other relevant person and the child; 

3. the degree of commitment that the applicant has shown towards the child; 

4. the extent to which the applicant has contributed towards the expenses in connection with the birth and maintenance of the child; and 

5. any other factor that should, in the opinion of the court, be taken into account. 

   
   

Section 26 of the Act stipulates that a person who is not married to the mother of a child and who claims to be the biological father of the child may: 

1. apply for an amendment to be effected to the registration of birth of the child in terns of section 11(4) of the Births and Deaths Registration Ac 51 of 1992, which will identify him as the biological father of the child, if the mother consents to such amendment; or 

2. apply to a court for an order confirming his paternity of the child if the mother:

3. refuses to consent to such amendment; 

4. is incompetent to give consent due to mental illness; 

5. cannot be located; or 

6. is deceased. 

   
   

Conclusion 

The Children’s Act 38 of 2005 adopts a progressive approach towards the rights of unmarried fathers in South Africa, recognising their important role in the lives of their children. Section 21, 22, 23, and 26 of the Act set out various avenues which unmarried fathers can acquire parental rights and responsibilities, either automatically, by agreement, or through application to the court. 

These provisions highlight the law’s intention to facilitate the active presence and involvement of a father in a child’s upbringing. However, it is important to note that these sections are not the only avenues available to fathers seeking to assert or protect their rights; other legal remedies and broader principles within the Children’s Act and common law may also be relied upon.

Crucially, throughout all processes, the Act upholds the standard that the best interests of the child remain the paramount consideration. In this way, the Children’s Act carefully balances the promotion of paternal involvement with the fundamental need to safeguard the well-being and development of every child. 

For any assistance with any legal matters relating to your child, including parental rights and responsibilities, contact Gittins Attorneys for professional and compassionate legal support.