Honouring Fatherhood: Understanding The Rights Of Unmarried Fathers In South Africa

As we celebrate Father’s Day, it is important to highlight the responsibilities of all fathers, including unmarried fathers in South Africa. The law recognizes the crucial role that fathers play in the lives of their children. The Children’s Act 38 of 2005 (hereinafter referred to as “Children’s Act”) ensures that children’s best interests remain the primary concern in all matters dealing with children, while also affirming their right to have a relationship with both parents. 

The Best Interests of the Child Principle 

The cornerstone of the Children’s Act is that the best interests of the child are of paramount importance in every matter concerning the child (section 2(b)(iv) of the Children’s Act). This focus ensures that decisions about parental rights are not about parental entitlement but about ensuring the child’s well-being and development. The Children’s Act recognizes the importance of a child maintaining a relationship with both parents — even where the parents are not married.

How Can an Unmarried Father Acquire Parental Rights and Responsibilities?

According to section 21(1) of the Children’s Act, an unmarried biological father can acquire full parental responsibilities and rights if:

• He was living with the child’s mother in a permanent life partnership at the time of the child’s birth; or
• Regardless of cohabitation, he:
  • Consents to being identified as the father; or
  • Successfully applies to be recognized as such under section 26; or
  • Pays customary law damages; or
  • Has contributed to the child’s maintenance, or has attempted in good faith to do so, for a reasonable period.

What if Parents Cannot Reach an Agreement?

If an unmarried father and the biological mother cannot agree on his parental responsibilities and rights, the father may:

• Approach the Children’s Court for an order in terms of section 24 of the Children’s Act regarding care and/or contact;
• Approach the High Court for an order in terms of section 24 of the Children’s Act on guardianship or combined orders on care, contact, and guardianship.

Factors Considered by the Court

When assessing an application for parental rights and responsibilities, the court considers several key factors listed in section 7 of the Children’s Act:

• 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 to the child’s maintenance or has attempted to do so;
• Any other relevant factor, such as whether the unmarried father has a history of violence towards children, the effect of separating the child from the mother, and the child’s own attitude towards the relief sought in the application.

The Right and Duty to Maintain the Child

In terms of section 15 of the Maintenance Act 99 of 1998, an unmarried father has a legal duty to maintain his child, and the child has a corresponding right to be maintained by the father. This duty exists automatically, regardless of whether other parental rights and responsibilities have been granted.

Guardianship and Consent

If an unmarried father is granted guardianship, his consent is required in certain important matters in terms of section 24 of the Children’s Act concerning the child, including:

• The adoption of the child by another person;
• The child’s application for a passport;
• The removal of the child from South Africa;
• The child’s application to get married

This Father’s Day, we celebrate all fathers and recognize their essential role in the lives of their children. For unmarried fathers, the law provides a clear framework to ensure that you are protected while always putting the best interests of the child first. 

Happy Father’s Day!

Should you need any advice or assistance with regards to this topic we can be of service, please contact us here or via:

Email: attorney@shalaw.co.za 

Tel: 067 617 3130 / 039 032 0044

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