With the introduction of the Children’s Act 38 of 2005, South Africa has moved away from its archaic school of thought which granted a mother full rights and responsibilities in respect of her child, while keeping the father confined to financial duties.Now, all the rights which were granted to a mother are also indefinitely granted to the biological father of the child,
as if he were married to the mother at the time of the child’s conception, birth, or any time in between. These rights are aimed at protecting the best interests of the child.
If you’re an unmarried mother, your child will be entitled to financial support from his or her biological father, regardless of whether or not the father is present in the child’s life. The mother would most likely be the primary caregiver but the biological father of the child, married or unmarried, is still automatically granted parental rights and responsibilities, provided that he complies with certain requirements, some of which are listed below:
- He is living with the mother in a permanent life-partnership, since the time of the birth of the child.
- He was living with the mother in a permanent partnership at the time the child was conceived.
- He consents to be identified as the child’s father and makes an application in this respect, or pays damages in terms of the customary law.
- He contributes to or makes a reasonable attempt to contribute, in good faith, to the upbringing of the child.
- He has maintained/attempted contact with the mother/child since the birth of the child.
He is also legally obliged to pay maintenance until the child reaches the age of 18 and failure to do so can result in many consequences. This payment of child maintenance is either regulated by a mutual agreement between the parents or by a court order.
Certain rights that fathers have are set out below:
- To be informed of the pregnancy.
- To be granted the opportunity to acknowledge paternity.
- To be included in the registration of the birth of the child.
- To either consent to or oppose the possible adoption of the child and to have this recorded.
It is also important to note that if the unmarried biological father feels that he is being deprived of any of his rights or responsibilities by the child’s mother, he ought to seek legal advice immediately.
In the event where an unmarried biological father does not meet the criteria to grant him automatic parental rights and responsibilities, he would have to apply in court to grant him parental rights and responsibilities, which include access to his child.
If the parents live together, but are not married, it is desirable that they draw up a cohabitation agreement. This guarantees the protection of the rights of each individual parent and the child. Any one of our expert attorneys can be contacted in order to duly assist you in this regard.
