My Child was born out of wedlock: Her mother will not consent to her surname change and for me to be registered as her biological father. What can I do?
It often happens that a child is registered at the Department of Home Affairs with the mother’s surname, and later the father wants the child to have his surname. The opposite is also true. This is when the child has the father’s surname, and the mother wants her to have her surname. This often happens in cases of children born out of wedlock, or in cases where the parents are divorced. So, what can a parent do to change the child’s surname? Read on to find out the answers below.
Then there is the other scenario where the details of the father are not provided when registering the child with the Department of Home Affairs. One reason for this could be that the mother is not certain who the father is, or just does not want him to be associated with the child. Either way, that section of the child’s birth registration is left blank. Now, what can such a father, or child do under such a situation? We approached Advocate Muhammad Abduroaf, a Family Law Expert for some advice on this issue. Read on if you want to know more.
What is a surname?
A surname connects you to your family, ancestors and heritage. On a rare occasion, your last name can be an omen that you carry with you for the rest of your life. Each parent would prefer to have their offspring have their family name to connect their child to them. But sometimes, getting it right can be a challenge, especially if the child’s parents are not married and do not share the same surname.
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Most people get married, and the wife usually changes her surname to that of her husband, or have what they call a “double-barrel” surname. If that is the case, then their offspring would have their last name. Should the child walk down the street past a neighbour, and a neighbour asks the child her surname, through that they would be able to assume where the child lives, and who her parents are etc. Depending on the neighbourhood, the child’s great-grandparents would also be able to be identified. For some, having the same surname as your parents can be less important, but mostly not.
What does the law say about changing a minor child’s surname?
A child must have the surname of one of his or her parents. If the child was born out of wedlock, the child will have the surname of the mother, unless the father consent to the use of his surname. According to the Births and Deaths Registration Act 51 of 1992 a “child born out of wedlock” “does not include a child whose parents were married to each other at the time of his or her conception or at any time thereafter before the completion of his or her birth”.
We are going to look at two issues in this legal article. The first is that of the amendment of the birth registration of children born out of wedlock. In other words, correcting the records to reflect the biological father, as the father. It is possible for the change of a surname of a child born within marriage; however, this article will not be dealing with that. The other issue we shall look at is how can a surname change be done. This would be of use to fathers who never married the mother.
Where are the father’s details found?
It may come to the surprise of the father to find out that he is not registered as the father of his child at the Department of Home Affairs. When he finds this out, the first thing he may do is speak to a lawyer or do some research. Either route will take him to the relevant legislation, in this case, the Births and Deaths Registration Act 51 of 1992. The Act is a long and crafty piece of legislation. We shall however only deal with the relevant sections for this legal piece.
Section 11 of the Births and Deaths Registration Act 51 of 1992
Section 11 of the Births and Deaths Registration Act 51 of 1992 deals with the amendment of birth registration of a child born out of wedlock. An extract of the Act is as follows:
- Amendment of birth registration of child born out of wedlock
(1) Any parent of a child born out of wedlock whose parents married each other after the registration of his or her birth, may, if such child is a minor, or such child himself or herself may, if he or she is of age, apply in the prescribed manner to the Director-General to amend the registration of his or her birth as if his or her parents were married to each other at the time of his or her birth, and thereupon the Director-General shall, if satisfied that the applicant is competent to make the application, that the alleged parents of the child are in fact his or her parents and that they legally married each other, amend the registration of birth in the prescribed manner as if such child’s parents were legally married to each other at the time of his or her birth.
(2) If the parents of a child born out of wedlock marry each other before notice of his or her birth is given, notice of such birth shall be given and the birth registered as if the parents were married to each other at the time of his or her birth.
(3) …
(4) A person who wishes to acknowledge himself to be the father of a child born out of wedlock, may, in the prescribed manner, with the consent of the mother of the child, apply to the Director-General, who shall amend the registration of the birth of such child by recording such acknowledgement and by entering the prescribed particulars of such person in the registration of the birth of such child.
(4A) An amendment of the particulars of a person who has acknowledged himself as a father of a child as contemplated in subsection (4) and section 10(1)(b) of the Act shall be supported by the prescribed conclusive proof of that person being the father of the child.
(5) Where the mother of a child has not given her consent to the amendment of the registration of the birth of her child in terms of subsection (4), the father of such a child shall apply to the High Court of competent jurisdiction for a declaratory order which confirms his or her paternity of the child and dispenses with the requirement of consent of the mother contemplated in subsection (4).
(6) When the court considers the application contemplated in subsection (5) the provisions of section 26(b) of the Children’s Act shall apply.
In short, the sections say …
The above sections are self-explanatory. They deal with the situation where a change is made in relation to the marital status of the parent and for the inclusion of the father in the records. What is important to note is that the records can be changed after the parent married each other, and by the child when he or she turns 18. Furthermore, even if the mother refuses to give consent, the father can apply to the Court to dispense with the mother’s consent. Section 26(b) of the Children’s Act deals with persons who apply to Court to confirm paternity.
As can be seen from the above, the law allows for a change in the birth registration regarding the marital status of a child’s parents in relation to the specific child, as well as the identity of the child’s father. According to the regulations of the Births and Deaths Registration Act 51 of 1992, both parents must complete Form BI-1682 and submit it to any domestic Home Affairs office under normal circumstances. Otherwise, a Court order is required.
Alteration or Change to a minor child’s surname
Now we move onto the aspect of the alteration of the surname of the minor child. Unlike the amendment of the records to reflect the marital status of the parents, or identity of the father of the minor child in the record, where we are dealing with factual issues; changing a surname, can have greater issues. In other words, a mother would not have much of a foot to stand on in refusing a father the right to have the records reflect him as a father. However, when it comes to a parent refusing a surname change, things are not that simple. This is where a child’s best interests have to be looked at. At the outset, one can assume that litigation could become inevitable.
The relevant section to look at is section 25 of the Births and Deaths Registration Act 51 of 1992. An extract of the Act is as follows:
- Alteration of surname of minor
(1) When –
(a) the birth of any minor born out of wedlock has been registered and the mother of that minor marries any person other than the natural father of the minor;
(b) the father of any minor is deceased or his or her parents’ marriage has been dissolved and his or her mother remarries or his or her mother as a widow or divorcee resumes a surname which she bore at any prior time and the father, where the marriage has been dissolved, consents thereto in writing, unless a competent court grants exemption from such consent;
(c) the birth of any minor born out of wedlock has been registered under the surname of his or her natural father and the natural father consents thereto in writing, unless a competent court grants exemption from such consent; or
(d) a minor is in the care of a guardian,
his or her mother or his or her guardian, as the case may be, may apply to the Director-General for the alteration of his or her surname to the surname of his or her mother, or the surname which his or her mother has resumed, or the surname of his or her guardian, as the case may be, and the Director-General may alter the registration of birth of that minor accordingly in the prescribed manner: Provided that the man who married the mother of a minor mentioned in paragraph (a) or (b), shall grant written consent for the alteration.
(1A) Notwithstanding subsection (1)(b) and (c), the natural father’s written consent is not required where the mother has sole guardianship of the child concerned.
(2) Any parent of a minor whose birth has been included under a specific surname in the population register, may on the strength of a reason not mentioned in subsection (1), apply in the prescribed manner to the Director-General for the alteration of the surname of the minor under which his or her birth was registered, and the Director-General may, on submission of a good and sufficient reason given for the contemplated alteration of the surname, alter the said original surname accordingly in the prescribed manner.
(3) For the purposes of this section “guardian” includes any person who has in law or in fact the custody or control of a minor.
Section 25 is quite self-explanatory. For the purpose of this article, section 25(2) is of relevance. What is important to also note is that if a parent does not consent to the surname change application, the Court can give such consent to such an application or dispense with the refusing parent’s consent. Under all circumstances, the child’s best interests would be looked at when considering such a court application. Below are some examples of good reasons, and not so good reasons for such an Application:
Good reasons for the surname change of a minor child
One good reason would be that the minor child always used the surname of the father, but has not been registered with his surname.
There are always problems that occurs due to the parent having a different surname than the child.
The father is caring for the child and/or the child primarily lives with him.
Unsound reasons for a surname change of a minor child
On the basis that the child should have the fathers surname in principle.
He was never involved in the child’s life but now wants a surname change.
The sole reason for the change is that he is paying child support.
The child visits him during the holidays.
Final words to parents of children born out of wedlock
If a child was born out of wedlock, it is recommended that the father’s details be included in the registration. If the parties are intending to live together as life partners, and not get married, they need to discuss the aspect of whose surname the child will have. This will have a huge impact on the child’s life in the future. If they cannot come to an agreement on the surname, it would be best to take the issue on mediation.
We wish all parents the best in the parenting of their child. Remember, a child cannot choose his or her surname at birth, let alone his or her parents. But you as parents have the choice to make the right decisions for the sake of the future happiness of your child.
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Hi my children born out of wedlock and the father fost me to register the children with his surname and I refuse because my culture does not allow children to take their father surname if parent are not married so he promised to marry me then I agree to take the father surname now he’s never married me. Even now my son is 15 yrs and daughter is 12yrs and we stay together but no marriage so now I want to change my children in to my surname. Is it possible to change them?
Good day
It is possible if the court believes it is in the child’s best interests. We advise you approach the court for assistance.
If a child’s surname was changed and a new birth certificate was issued does it replace/overwrite the original birth certificate? The ID number changed as well. When requesting an unabridged birth certificate, which surname and ID number will appear? Which surname is then legally “surname at birth”?
Hi there.
Is it possible for a single mother (full parental responsibility) of a child born out of wedlock to change the surname of the child (13yo) to the child’s stepfather (upon the child’s request) due to not having any relationship to the natural father, and of which he does not appear on the birth certificate?
Thank you kindly
Hi have 2kids and divorced with their father they are both using their fathers surname and after we divorced the father promise to give 50% and give the children money to go to school but he never honor even one of the agreements so what can I do because am straggling to take care of my children alone
Good day. Approach the maintenance court.
Can my minor child carry both parents surname without hyphenating as we were never married?
You would need to speak to the Department of Home Affairs.
I have a new born child I and the mother we want her to be registered with my surname as her father what will be needed from us as the parents do we need any ids from the site of my family or what please advice
Give the Department of Home Affairs a call or visit their website. They would advise you.
Can i change my child his stepfather surname to mine as his mother without step father conset
Good day
It would be best you obtain the information from the Department of Home Affiars.
Never married. During pregnancy, family promised to come back for marriage process or pay damages . I took the father’s surname instead of mine, thinking the process will unfold. Unfortunately they never came back or pay damages. What do i do under such circumstances since i feel this will affect my child. I use a different surname from hers and due for marriage with different partner
Hi, my grandson is born out of wedlock and has the mothers surname. The father is from Jamaica and would love the child’s surname be changed to his.
What procedures do we follow? And what documents do the father needs to bring with coming to SA for this.
We where told that the 3 of them must go for DNA testing together . Only at a specific doctor that does this for Home Affairs.
Hope you can guide me as the father will be here mid October.
Regards
Shaneill Davids
Good day
The mother’s consent would be required for the surname change. If she does not provide it, the High Court can dispense with her consent in the Application to the Department of Home Affairs. The Court would decide what is best for the child. The same would apply for a DNA test.
Hi !
I’m a major (24 y/o) – my biological father is British. He is not present on my birth certificate and currently lives abroad – we recently got into contact with one another and he has agreed to aid me where possible upon resolving his details onto my birth certificate.
I would love to know, what process is there in order for me to get the ball rolling on resolving this matter? How do I add my biological father onto my B.C which lives abroad?
I would truly appreciate your help.
Many thanks!
Good day
You would need to speak to the Department of Home Affairs as to what processes they follow in such a circumstance.
Hi…can my daughter go for a affidavit and use the B-193 form to change her son’s surname to hers…father made promises and move on…made no contact or pay anything for seventeen months now…struggle with the different surnames…to get passport and medical issues…no money for lawyers
Good day
The decision lies with Home Affairs. You would have to explain the circumstances to them.
Hi i have a son he used his father s surname nd nw im married with other man so we need to change my sons surname to my new husband
Good day
You would need to get the father’s consent to apply. If he refuses, you would need to go to court. The court would then decide what is best for the child.
if I was maintaining the mother of the child during pregnancy and at the time of birth of child I was available to give care to child , but the mother of the child decides to exclude me on the registration of the child records now the child is using the surname of mother . what can I do to change to my surname as I am still caring for the child
You need the mother’s consent when making the application. If she does not give it, you need to approach the court to dispense with the mother’s consent when applying to the department of home affairs.
i have two child out of wedlock and they took mother surname and we have separated now the mother is getting married to someone. i am not registered as the father and i am supporting them. i dont want my kids to use the surname of the person who is marrying their mother
Good day
You need to discuss this aspect with the mother. We also advise you to approach the Department of home Affairs to determine if it is in fact possible for the mother to change the children surname to that of her new husband. if it is a possible, then to avoid it from happening should the mother persist, you need to approach the court. The court would then decide what is best for the children.
I would like to change my child surname to mine because the father promised to get married but never did and now we not together so what must i do i put my child surname on his when he said we gonna get married so he fail that and i dont know where he is now.
If he does not give consent, and Home Affairs does not want to change it, the you need to approach the High Court.
Good day,
I have a 13 years old daughter and the father doesn’t want to get involved in her life. All he can do is to give monetary child support, other than that he doesn’t want to get involve at all.
I need to apply her for highschool, however schools are asking unabridged birth certificate and both parents ID.
Will it be an issue to get unabridged birth certificate if her father doesn’t want to get involve and will it be an issue for a school not to accept my daughter‘s application?
Good day
We sympathise with your situation, but it would be best to ask the first question to the Department of Home Affairs and the second to the school itself. If the Department of Home Affairs requires the father’s consent, and he does not want to give it, then you would have to approach the Court.
Good day..
Please assist ive been staying with someone knowing that I’m the father of the child sonce she was pregnant and even the mother was convinced as she did a pertinity test voluntarily.. the child was on the mothers surname, can we change the child surname to my surname as the mother consents to… and what would be the dilemma should someone pops out later and claims to be the father and wants to re change the child surname? Can it be changed and i loose custody of the child…
Good day
We advise that you go for a paternity test to confirm your paternity. If you already did one, that should be the final results.
Regarding the surname change, you would need to approach the Court should the mother not wish to give consent for the application. The court would decide what is best for the child.
Hi ,i had a child and im no longer with her father and we were not married and now im married to another guy so is it possible to change my child’s last name to her step dad and i’ve already talked with the biological father asking him if i could change the child’s surname but he refuses but he doesn’t maintain the child all he does is to buy her clothes after but does not happen often he buys her clothes after a long time , it took him a year or so, before he could buy her clothes again so id be pleased to be advised on this matter
Good day
You would need to approach the court. The Court may order that the father’s consent is not required for the application of a surname change.
Good day,
“My son” has my surname but I did 3 DNA test and they all came negative i.e. he is not my biological son.
Do I need the mother’s consent to change his surname to hers or at least have my name removed as His father at home affairs as it can affect my estate.
Good day
The Application would have to be to remove your details as a father.
Hi I was born with my mother marrying a man who is not my biological father while pregnant who later took me on as his own son. after i was born, my biological father came claiming wanting to put me under his surname but my mom refused. was it a wise decision as she said he did not want me in the first place? i believe this was the best decision what do you think or what should my mom do to avoid my biological father from giving his surname?
Good day
The law looks at what is best for the child. If you believe it is best to have your current surname, then you must stick to it. If your biological father believes otherwise, then he needs to apply to Court.
Good day. I was born out of wedlock in 1971 – never knew my father. I recently applied for an unabridged birth certificate and discovered that the surname I was registered on at my birth was different than the surname I grew up with as my maiden name. The surname on the unabridged was the same as the man registered as my father. I also applied for a vault copy and it shows he registered me and the officer at that time wrote a note that he saw both parents’ identification documents (persoonskaarte). My mother denies that she knew anything of this – she asked him to go and register me as she did not have transport and she was not aware of the fact that he was registered as my father and I was registered ubder his surname. My questions is if it was possible 1)that she did not know this and 2)for anyone to change my surname to hers without her knowing it?
Good day
1971 is a long time ago. It would be best you do the inquiries at the Department of Home Affairs.
Hi There. My daughter has custody of her son. He has her surname. Can his Dad change his surname to his fathers surname without my daughters consent?
Good day
Her consent would be required.
If the matter is unopposed, I can be resolved in two months. If it is opposed, then depending on how urgent the matter is, it can take a few months or longer.
Hi,
I have a child out of wedlock. Both mom and dad want the child under dads surname but it is proving difficult because dad lives abroad and has not returned to SA in several years. Home affairs stipulates dad must return to SA in order to effect name change in person. Dad works on a cargo ship for several months in the year and can’t return anytime soon. Any suggestions for an expedited resolution?
Good day
The Court can order that the father’s consent is dispensed with as per the article. If you wish to discuss this matter, feel free to set up a consultation with us.
Thanks for your rapid response. What is the turnaround time for this solution?
Hi marlin, we have a similar situation, have you managed to resolve yours?
Was it possible for a man to register a baby born out of wedlock in 1971 on his surname without the mother knowing about it? And later the baby’s surname is changed to mother’s surname without her knowing about it? My unabridged birth certificate shows a man (whom I never knew)registered as my father and I was registered on his surname but my first ID document was on my mother’s surname. She denies that she knew about any of these. She says he was a family friend and she asked him to register my birth on her behalf because she didnt have transport.
Good day
It may be best for you to lodge such a query with the Department of Home Affairs. Of course, it would be seen as a fraud from a legal point of view.
Evening I’m in a process of divorce pregnant with other man child, can I register my child with my maiden name or biological father ‘s name plsss help
Good day
We presume that the Department of Home Affairs would only allow you to register your child under your surname unless the father consents to his surname being used.
How can I register my child’s birth I am married but its not my husband child.The child’s father is nowhere to be found.
You can still register. Go to your nearest department of home affairs.
Please contact me regarding naming right
Our Contact number is 0214243487. Feel free to call us.
Good Day
This is a brilliant article. I was in an abusive relationship for two years. My daughter is four years old, her father never paid child support and hasn’t seen her or made an attempt to see her since she was three months old. I was forced to put his surname down on her birth certificate as I did not want to cause a scene on the day or regret it later. She is starting school soon, and I need to change her name. How do you obtain a waiver of consent form from a court? I can not ask the father for consent.
You need to Apply to Court. It is best to see an attorney.
What is the process of court order to change child’s surname to mother’s surname? Child born out of wetlock and parents agreed to give child fathers surnamr because they were supposed to get married and the mother changes her surname too, now the mother wants out of the relationship, the father is abusive.
We advise that you see an attorney to make such an application for you to Court.
Can you change surname of a child born out of wedlock. Currently registered under fathers surname? Need to change to mums surname.
Unable to contact father and need to get passport for child.
You would require the father’s consent. If you cannot get it, then you can approach the Court.
Can a mother legally change a child’s surname without the father’s consent? She has parental responsibility and he lives in the UK but does still have contact with the child and does still pay child support.
One would usually require the father’s consent.