Rights of Unmarried Fathers
Unmarried Fathers’ Rights to their Children: A South African Legal Perspective
Written by Advocate Muhammad Abduroaf (LL.B LL.M)
Advocate of the High Court of South Africa
It still seems to be the perception amongst many South Africans that unmarried fathers have limited rights to their children and that it is the mother who decides what is best for the child and the father has no or limed say. This is not inline with our Constitution and what’s in the child’s best interest.
This article deals with the rights of unmarried fathers in relation to their children. To put it differently, if a child was born out of wedlock, this article outlines the father’s rights to the child. In dealing with this topic, I shall not only deal with the fathers’ rights to their children, but their responsibilities as well as they go hand in hand. For a better understanding, section 18 to 35 of the Act referred to hereunder needs to be studied.
The Children’s Act
Our point of departure is the Children’s Act, 38 of 2005 (the Act) which became fully operational on 1 April 2010. The Act outlines, amongst other things, what the parental responsibilities and rights of married and unmarried fathers are.
Before we look at that, we need to define parental responsibilities and rights.
Meaning of Parental Responsibilities and Rights
The Act defines parental responsibilities and rights in relation to a child. They are:
(a) to care for the child;
(b) to maintain contact with the child;
(c) to act as guardian of the child; and
(d) to contribute to the maintenance of the child.
Now one would want to know what is meant by care and contact as they are relatively new terms. The terms guardianship and maintenance are presumed to be understood. In the past the terms used for care and contact were custody and access respectively.
Meaning of Care
With regard to what is meant by care, the Act defines it as follows:
“care”, in relation to a child, includes, where appropriate-
(a) within available means, providing the child with-
(i) a suitable place to live;
(ii) living conditions that are conducive to the child’s health,
well-being and development; and
(iii) the necessary financial support;
(b) safeguarding and promoting the well-being of the child;
(c) protecting the child from maltreatment, abuse, neglect, degradation,
discrimination, exploitation and any other physical, emotional or moral
harm or hazards;
(d) respecting, protecting, promoting and securing the fulfilment of, and
guarding against any infringement of, the child’s rights set out in the Bill
of Rights and the principles set out in Chapter 2 of this Act;
(e) guiding, directing and securing the child’s education and upbringing,
including religious and cultural education and upbringing, in a manner
appropriate to the child’s age, maturity and stage of development;
(f) guiding, advising and assisting the child in decisions to be taken by the
child in a manner appropriate to the child’s age, maturity and stage of
(g) guiding the behaviour of the child in a humane manner;
(h) maintaining a sound relationship with the child;
(i) accommodating any special needs that the child may have; and
(j) generally, ensuring that the best interests of the child is the paramount
concern in all matters affecting the child;
Meaning of Contact
The Act defines contact as follows:
“contact”, in relation to a child, means-
(a) maintaining a personal relationship with the child; and
(b) if the child lives with someone else-
(i) communication on a regular basis with the child in person, including-
(aa) visiting the child; or
(bb) being visited by the child; or
(ii) communication on a regular basis with the child in any other manner,
(aa) through the post; or
(bb) by telephone or any other form of electronic communication;
Having outlined what is meant by parental responsibilities and rights of care and contact as provided for by the Act, we can now move on to see what the Act says about the parental responsibilities and rights of fathers. In doing so, we shall firstly look at the parental responsibilities and rights of married father as provided for in the Act followed by that of unmarried fathers. This would make this article more complete.
Parental Responsibilities and Rights of Married Fathers
Section 20 of the Act stipulates the parental responsibilities and rights of married fathers. It states the following:
The biological father of a child has full parental responsibilities and rights in
respect of the child-
(a) if he is married to the child’s mother; or
(b) if he was married to the child’s mother at-
(i) the time of the child’s conception;
(ii) the time of the child’s birth; or
(iii) any time between the child’s conception and birth.
Therefore, even if the child’s parents subsequently divorced, the biological father still has full parental responsibilities and rights in respect of the child unless a court ordered otherwise.
With regard to children whose parents were never married, their fathers’ responsibilities and rights toward them are dealt with next.
Parental responsibilities and rights of Unmarried Fathers
Section 21(1) of the Act stipulates the parental responsibilities and rights of unmarried fathers. It states the following:
The biological father of a child who does not have parental responsibilities and
rights in respect of the child in terms of section 20, acquires full parental
responsibilities and rights in respect of the child-
(a) if at the time of the child’s birth he is living with the mother in a permanent
(b) if he, regardless of whether he has lived or is living with the mother-
(i) 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
(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
From the above, it is clear that unmarried fathers who fulfil the requirement of section 21(1) of the Act have full parental responsibilities and rights regarding their children. This means that both the child’s parents must play an active role in the child’s life. If one of the parents tries to limit the other parent from exercising his or her parental responsibilities and rights; that parent is acting contrary to the Act.
The Act does not stipulate with whom the child must live, the amount of contact, or how the parents should exercise their respective parental responsibilities and rights with regard to the child. What is expected is for the parents to exercise their parental responsibilities and rights in line with what is in the child’s best interests. Obviously, if they cannot agree on what is best for the child, then one of the parties may be forced to take the matter to court. This could be where the mother does not what the father to spend a reasonable amount of time with the child during a school holiday. However, before going to court, the parents must first try to agree on a parenting plan referred to below. If they cannot, then the court may be approached.
Major decisions regarding a child
How does the Act force parents to consider each other regarding major decision in the child’s life? Here section 31(2) of the Act assists.
Section 31(2) of the Act states the following:
(a) Before a person holding parental responsibilities and rights in respect of a child
takes any decision contemplated in paragraph (b), that person must give due
consideration to any views and wishes expressed by any co-holder of parental
responsibilities and rights in respect of the child.
(b) A decision referred to in paragraph (a) is any decision which is likely to change
significantly, or to have a significant adverse effect on, the co-holder’s exercise
of parental responsibilities and rights in respect of the child.
From the above it is clear, that unmarried fathers have the responsibility and right to play a significant role in the child’s life just as the mother with regard to care, contact, guardianship and maintenance. Parents therefore need to give consideration to each others’ views before implementing any decision that may affect the other parent’s parental responsibilities and rights to the child. Should they not be able to agree on the exercise of their respective parental responsibilities and rights; they then need to follow the requirements of section 33(2) of the Act in trying to agree on a parenting plan before going to court. This can be found here http://www.ourlawyer.co.za/parental_plan_parenting_plan.htm .
Lastly, whatever parents do or don’t do, they need to ensure that it is in the best interest of the child concerned and not let their personal issues with each other come into play.
Advocate Muhammad Abduroaf
Cape Town | South Africa
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