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Unmarried Father

When can an unmarried father obtain parental rights and responsibilities towards his child?
An unmarried father can obtain parental rights and responsibilities in the following circumstances:

  • if he was living with the child’s mother at the time of the child’s birth; or
  • if he, regardless of whether he has or is living with the mother of the child –
    • consents or applies to be identified as the child’s father, or pays damages in terms of customary law;
    • contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
    • contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

How can an unmarried father obtain parental rights and responsibilities?

  • If the unmarried father only wants to apply for care and/or contact, he can do so in the Children’s Court.
  • If the unmarried father wants to apply for guardianship, an application must be made in the High Court.
  • If the unmarried father wants to apply for care, contact and guardianship, he must bring the application in the High Court.

What factors will the court take into account when considering an application for parental rights and responsibilities?

  • The best interests of the child.
  • The relationship between the unmarried father and the child.
  • The relationship between any other person and the child, such as the mother.
  • The degree of commitment the unmarried father has shown towards the child.
  • Whether the unmarried father has contributed or attempted to contribute to the maintenance of the child.
  • Any other factor the court considers to be relevant, such as:
    • whether the unmarried father has a history of violence towards children;
    • the effect of separating the child from his/her mother; or
    • the child’s attitude towards the relief sought in the application.

Does an unmarried father have to pay maintenance towards his child?
Yes, an unmarried father has a duty to maintain his child and the child has a right to be maintained.

Must an unmarried father be considered when making important decisions regarding his child?

  • If an unmarried father was granted guardianship over his child, his consent must be obtained in the following circumstances:
    • the adoption of the child by another person;
    • if the child applies for a passport;
    • the removal of the child from South Africa; and
    • in the event the child wants to get married.
  • If an unmarried father was granted contact with his child, the mother of the child must inform him of any change of address immediately. Failure to do so is a criminal offence.

GLOSSARY OF TERMS:

CARE: the right of a parent to have his/her child reside primarily with him/her and to control or supervise the daily life of that child.

CHILD BORN OUT OF WEDLOCK: a child whose parents were not married to each other at the time of the child's conception or at any time after the birth of the child.

CHILDREN’S COURT: a special court dealing with matters relating to children. Every Magistrate’s Court shall be a Children’s Court and the High Court is the upper guardian of all children.

CONTACT: to maintain a personal relationship with a child and allowing a person to see, spend time with or communicate with a child.

GUARDIANSHIP: includes safeguarding the child’s property or property interests; representing the child in legal matters; and consenting to marriage, adoption, removal from South Africa, or an application for a passport.

PARENTAL RIGHTS AND RESPONSIBILITIES: to care for a child, maintain contact with the child, act as guardian of the child and to contribute to the maintenance of the child.

How can LegalWise assist you?

Should you require an explanation of your rights on this topic, please contact your nearest Branch.


How can LegalWise assist you?

Should you require an explanation of your rights on this topic, please contact your nearest Branch.

DISCLAIMER:

The information contained on this website is aimed at providing members of the public with self-help guidance on the law. The information applies to South Africa, unless it is specifically stated that the information applies to another country. Although LegalWise has tried to ensure that the information is accurate and current, it is important to remember that the law constantly changes. And, although LegalWise has tried to provide information of a high quality, we cannot guarantee that the information will be updated and/or be without errors or omissions. As a result, LegalWise, its employees, agents or representatives will under no circumstances accept liability or be held liable for the consequences resulting from, the use of or the inability to use the information, or, any negligence by us relating to the information so used. The information contained on this website has not been provided to meet the individual requirements of a specific person and we insist that legal advice be obtained relating to a person’s unique circumstances.