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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2014-02-07
Many people in South Africa, especially those who have an interest in the rights of unmarried fathers, would by now be aware that there have been sweeping changes made in our legislation regarding the rights of such unmarried fathers. 

The Children's Act 38 of 2005, which became effective as from 1 April 2010, has swept away the previously held beliefs that the mother was the natural nurturer and we now have a gender-neutral approach to parental rights and responsibilities. This Act applies retrospectively, which means it applies to those children who were born prior to 1 April 2010. 

A biological father who has a child out of wedlock, can now acquire full parental responsibilities and rights in respect of the child, if the biological parents are living together, or if the father consented to be identified as the father, or contributes or has attempted in good faith to contribute to the child's upbringing, or contributes towards the expenses in connection with the maintenance of the child. 

In terms of this Act both parents have to be consulted on all major decisions pertaining to the minor child and both parents have joint rights and responsibilities towards the minor child.

Does a father who visits his biological child only 15 times in over an 8 year period be regarded as "contributing or attempting in good faith" to contribute towards his child's upbringing? This was the question the court had to grapple with when a biological father, who was never in a long term love relationship with the child's mother, approached the court for an order that he be awarded joint parental responsibilities and rights in respect of his minor child. 

The mother opposed the application saying that the father did not contribute towards the minor's upbringing. She argued that the father's 15 visits over an 8 and a half-year period, many of which were less than an hour long, resulted in the fact that the child considered the father to be a stranger to him. 

She said that the father failed to play any significant role in the child's upbringing or education. Having properly considered all the pertinent factors of the case, the court was however not in agreement with the mother's position and held that the father did attempt in a bona fide manner (good faith) to contribute towards the child's upbringing and granted the father his application. 

Know your rights. Email fawzia@thelawdesk.co.za or call 031-5025670 for any legal assistance. The Law Desk of Fawzia Khan & Associates. We know! We care! We deliver!