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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2013-06-07
With Father's Day around the corner, we take a look at the rights of fathers, in particular, those of unmarried fathers. In South Africa, the rights of this category of parent was that they had virtually no rights at all when it came to children born out of wedlock.

This did not mean that the unmarried father was exempt from paying maintenance. A father's responsibility to pay maintenance towards his children remained, regardless of the fact that the children were born in or out of wedlock.

The definition of a child 'born out of wedlock' also included those instances where couples were married according to customary law, such as Muslim, Hindu and African customary law.

The biological mother of a child who was born out of wedlock, placed her in a position of control and she 'called the shots' in deciding whether or not to allow the father any rights of access to or contact with the child.

Very often the father was refused any rights of access or contact and there was very little the father could do. This position was later changed through the enactment of the Natural Fathers of Children Born out of Wedlock Act. Which governed the rights and responsibilities of unmarried fathers.

However this Act was criticized for not going far enough in ensuring the rights of the unmarried father were properly protected. The Children's Act 2005, which came into effect in 2010, now offers unmarried fathers full rights and responsibilities, provided certain criteria are met.

Section 21 of the Children's Act says that a biological father can acquire full parental responsibilities and rights in respect of the child in the following ways:

(a) if at the time of the child's birth he is living with the mother in a permanent life-partnership; or

(b) if he, regardless of whether he has lived or is living with the mother - (i) consents to be identified as the child's father or pays damages in terms of customary law; (ii) contributes or has attempted in good faith to contribute to the child's upbringing for a reasonable period; and (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

Know your rights! Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance.