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Minor children born out of wedlock – Whose surname should they have?

Surname Change Child born out of Wedlock - Department of Home Affairs

Children born out of wedlock – The issue of whose surname the minor child should have

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Children born out of wedlock – let us have a look at the law when it comes to their surname, and changes to it. In the ideal world, a couple falls in love, gets married, and then bring a child into this world. However, since the beginning of time, this was not always the case. History has many stories of children who were born out of wedlock. This is more prevalent this modern day as many couples decide to start a family, without nuptials. Then there is the other extreme where a child is conceived through a brief encounter and then the parties continue with their own paths in life.

The law and society also treat children born out of wedlock differently. This has changed to an extent where neutral terms are being used. Words like “illegitimate” and so on are used to refer to such innocent children whose fate was laid down by their parents. The law and society were so extreme, that even children born from religious marriages, which were not recognised as valid civil marriages were also referred to as “illegitimate”. It is however still shocking that the South African law we refer to later, still uses the term “illegitimate child”.

Nonetheless, a beautiful innocent child is born, and then the issue of whose surname he or she should have has arisen. This is what this article addresses. Whose surname should a child born out of wedlock have, according to the law? And further, can such a surname be legally changed later?

 Issues in relation to a surname of  minor children born out of wedlock

This article deals with two issues in relation to a surname of a child born out of wedlock. The first is whose surname a child born out of wedlock should have according to the law? This is an important issue. There are a few scenarios that come to play. One where the parties lived together and planned on having the child and intend to marry or live together indefinitely. In such a case, maybe the child should have the father’s surname.

Then there is the other situation, where the mother and the father of the child had a short intimate relationship, and he wants the child to have his surname. This could be complicated as he may never form part of the child’s life but wants the child to have his surname. This we refer to as an ego or vanity reason.

And the second issue this article deals with is what the law says regarding a change to the surname of a child born out of wedlock. This is also an important issue as, sometimes, the father of a child born out of wedlock is the one who cares for the child and invests most of his life in the child. Situations can arise where it would be expedient for him to have primary care over the child and for the child to have his surname. We will look at this issue in more detail below. Now let us look at the law.

Births and Deaths Registration Act 51 of 1992

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When it comes to issues of name, surname, details of the father on the birth certificate and so on, we refer to the Births and Deaths Registration Act 51 of 1992. What this Act says, is that within 7 (seven) days of the birth of the child born out of wedlock, or any child for that matter, notice of his or her birth must be given to the Department of Home Affairs in the prescribed manner. It further says that if the parents are married, then the child would have the father’s surname. However, that is not the case for children born out of wedlock as you will see later.

The Births and Deaths Registration Act 51 of 1992 unfortunately still uses the term “illegitimate child”. But let’s have a look at it anyway.

Section 10 of the Births and Deaths Registration Act 51 of 1992

Section 10 of the Births and Deaths Registration Act 51 of 1992 is entitled “Notice of birth of illegitimate child”. It states the following:
“10. (1) Notice of birth of an illegitimate child shall be given –
(a) under the surname of the mother; or
(b) at the joint request of the mother and of the person who in the presence of the person to whom the notice of birth was given acknowledges himself in writing to be the father of the child and enters the prescribed particulars regarding himself upon the notice of birth, under the surname of the person who has so acknowledged.
(2) Notwithstanding the provisions of subsection (1), the notice of birth may be given under the surname of the mother if the person mentioned in subsection 5 (1 )(b), with the consent of the mother, acknowledges himself in writing to be the father of the child and enters particulars regarding himself upon the notice of birth.”

Explanation of section 10 of the Births and Deaths Registration Act 51 of 1992

Section 10 says that if the child was born out of wedlock, he or she should have the surname of the mother. However, if both the mother and father agree, then the child can have the surname of the father. Now, this is what the law says, and what would probably happen in life should the mother and father be on good terms when the child’s name is registered. However, what can the father do if later he wants the child to have his surname? In that case, we have to look at a different section of the Births and Deaths Registration Act 51 of 1992. And that is section 25 of the Act.

Section 25 of the Births and Deaths Registration Act 51 of 1992

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Section 25 of the Births and Deaths Registration Act 51 of 1992 deals with the alteration of the surname of a minor. Unfortunately, in that section, the word “illegitimate minor” is still used. The sections state the following:

“25. (1) When-
(a) the birth of any illegitimate minor 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 parents’ marriage has been dissolved and his mother remarries or his mother as a widow or divorcee resumes a surname which she bore at any prior time;
(c) the birth of any illegitimate minor has been registered under the surname of his natural father; or
(d) a minor is in the care of a guardian,

his mother or his guardian, as the case may be, may apply to the Director-General for the alteration of his surname to the surname of his mother, or the surname which his mother has resumed, or the surname of his 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.
(2) Any parent or any guardian 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 to the Director-General for the alteration of the surname of the minor under which his 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.”

Explanation of Section 25(1) of the Births and Deaths Registration Act 51 of 1992

Section 25 (1) provides for the situation where the minor can have his or her surname change. Most of the reasons mentioned sound logical. However, what happens in the case of a father wanting to change the child’s surname to his surname and the child was born out of wedlock? Well, in that case, section 25 (2) comes with an answer.

Section 25 (2) of the Births and Deaths Registration Act 51 of 1992

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According to section 25(2), the father of the illegitimate child can make an application to the Director-General of the Department of Home Affairs for the change of the minor child’s surname born out of wedlock. However, if the mother is still alive, both parents must consent to the application. If, however, the mother does not consent to it, the father would have to make an application to the High Court to dispense with the mother’s consent and for the Director-General to apply their mind without the consent of the mother.

Court Application in relation to a surname of a child born out of wedlock

Should there be an application to Court, as just mentioned, the Court would have to look at what is in the best interests of the minor child. Various factors would be looked at. It is however suggested that ego reasons should not be the justification for making the application. In other words, the father wants the child to have his surname solely due to him being the father, even though the mother cares for the minor child.

 

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34 thoughts on “Minor children born out of wedlock – Whose surname should they have?

  1. Good day,

    I am currently separated(11 months) with my wife and going through divorce, I just found out she is now pregnant with someone else ‘s child, obviously not mine.
    What Surname will the unborn kid take if born before the divorce is finalised.

  2. Hi my sister and her partner did not put either of their surnames on the birth certificate, in fact they used the partner’s step father surname on the birth certificate? The excuse given by the father is that he must also still change his surname to the step father’s surname which he has still not done to date.
    The relationship have become strained between the parents and the father is now threatening the mother.
    How will this affect the mother and father rights?
    Can the father act on the threat to withhold the child from the mother?

  3. Hi.
    I have a relative who had a child out of wedlock, intially when the child was born, the father was present at birth and as such his surname was placed on the birth certificate. However that relative (the mother) now wants to either remove the father’s surname or add her surname as they are not married. The family of the father is now refusing to go let her do this, and now trying to bring up discussions around paying damages, when prior to her wanting to make changes to the surname, there were no discussions regarding damages.

    What would be the best way forward with dealing with the matter, and if it is court, which court would one need to go to?

    Kind regards

  4. I would like to know for curiosity sakes. Me and the mother of my child had a child out of wedlock. How ever at the registration it registered under her name eventhough it was meant to be mine. Since we then split and I have mentioned that the actual agreement was this. She has proceeded to refuse and as far as to want full custody. Do I stand a chance at changing my sons name to mine despite the fact that I was there from day one, also provided financially and emotionally. Thanks.

  5. Hi

    My child was born out of wedlock and has my surname(Mother)
    I was wondering if my current husband (not the childs biological dad)wants her to take his surname is it possible without the fathers consent ?

  6. My sons father was not around when I registered for the birth certificate, so his section is registered as N/A, which I have not changed since our parental communication is dysfunctional.
    I’ve never been married so both my children have my surname, continuing my fathers legacy.
    However, since my 12 year old sons father has not returned him after a holiday visit and intends to file for custody. While his surname is included as a middle name, he may likely want to change it to the actual surname. I don’t know if he realises his name is not on the system.
    Am I wrong for leaving his section as N/A, since raising my kids myself all their lives it’s never really come up as a topic, but now I am curious about how right or wrong my actions are for not including him.

  7. Hello

    I had a son out of wedlock with the father and we were not living together but because the father was present at birth he put our son on his surname because home affairs was at the hospital. Will I have a problem to change my son’s surname to mine as we are not together and I am the caregiver.

    Thank you

  8. I am currently pregnant and my partner and were having a look at the BI-24 form. Obviously my child will be taking my surname as we are unmarried and will only change to his surname once he has fulfilled all the cultural requirements such as inhlawulo or “damages” to my family.

    Does he still need to fill in and sign the paternity details on the form for registration of birth?

  9. Hi I have just given birth out of wedlock and the father of my child wants the baby to take his surname. I’m scared to do it because he threatens to take the child away from me because it will be in his surname. What can I do to avoid my baby being taken away from me?

  10. Good afternoon,

    I have a one year old baby girl with a boyfriend whom I later found out that he is married, Now the father refuses to maintain the child as she is using my surname.
    What should I do for him to maintain the child.

    Your help will be much appreciated.

  11. Hi
    I have a baby whose on his father’s surname.. we separated now and I would like to change his surname to my maiden surname but the father won’t give consent. How do I go about changing his surname without the fathers consent?

  12. The father of my child does not want to be in his life but also does not wsnt to consent to me changing his sername what can i do

  13. Hy husband and i are married but we never registered our marriage at home affairs, he only payed half lobola for me. And now we have 3 kids together. Now he’s forcing me to change their surname to his while im still using mine. Can he change their surnames without my consent?

  14. Hi there,

    My partner and I just got a child, and we both want the baby to have both our surnames. We’ve seen this is only mentioned for children born within wedlock. How could we possibly go about this before we are married?

    Thank you.

  15. Hi there,

    My partner and I just got a child, and we both want the baby to have both our surnames. We’ve seen this is only mentioned for children born within wedlock. How could we possibly go about this before we are married?

    Thank you.

  16. I would like to find out if a man is married in cop and has a child with his mattress while married. During birth the child takes the surname of the mistress. Can the husband later decide to change the child’s surname without the wife’s knowledge.

  17. Hi .
    When i was still dating my baby daddy he asked my mother to change the surname of our child to his at that time I just turned 19. So mother told me to do so . Now am grown and I haverealised that i was not supposed to agree to that became because am not married to him . I asked him to go with me to home affairs so that I will be able to change the child surname back to my surname that she was using. Which is mine.Now he is refusing. What should I do

  18. Hi I just want to find out. I’m about to give birth to my son. Me and the father was together for 3 month but wasn’t together with the pregnancy. He will be part of the birth but I want to give my son my surname. But he is a threatinging me now with the surname. Can he decide what the surname is while I have my c section?

    1. Good morning. If the child was born out of wedlock, he should have the surname of the mother. However, if both the mother and father agree, then the child can have the surname of the father.

  19. Good day. Thank you for your post. I have 2 children out of wedlock and I gave them their dad’s surname, was promised marriage by their father, but we ended up splitting up as it became an abusive relationship. We actually agreed before the kids were born that should we not get married the surnames will change.

    I have approached the father and requested a letter of consent for both, but he is now refusing. I understand that I would need to go to court. Please could you just advise me on how the process works.

    Do I just rock up there, must I call the offices first. Your assistance would be greatly appreciated

    1. Good day
      The process is very complicated for a layperson. We advise you instruct an attorney to do all the necessary on your behalf.

  20. Goodevening i am XXXX i am not married to the mother of my child she never gave my details at home home affrairs of our child and she change the names of our child of what we decided if should be now i asked her to atleast put my son surname on mine but she doesnot want to what is my chances please reply just need information

    1. Good day
      Your guess is as good as ours. You would have to prove that it is in the child’s best interests to have your surname and not the mother’s.

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