By Marici Corneli 

Living in an era where many parents are not married, not living together or co-habiting, it is important for parents to know their rights and understand the Children’s Act 38 of 2005 (the Children’s Act).

It has been seen in the past that South African unmarried and divorced fathers have to battle to have contact or to maintain contact with their children.

Even after a divorce, the biological father of a child still has full parental rights to his child/children, unless a court orders otherwise. While married fathers automatically have these rights, unmarried fathers do not.

Chapter 3 of the Children’s Act beginning with s 18, deals with parental responsibilities and rights. Section 19 deals with parental responsibilities and rights of mothers, s 20 deals with parental responsibilities and rights of married fathers, while s 21 specifically deals with parental responsibilities and rights of unmarried fathers.

There are mothers and fathers who are married and raising their child/children together. There are single mothers and fathers who are single because they never married or they were divorced. All these families have rights and responsibilities for their child/children. They do not always have the same rights and responsibilities and the Children’s Act explains the differences.

Because the rights and responsibilities of parents can differ, it can become confusing trying to explain who has a right and who has not. We must distinguish between the different types of parents a child/children can have in order to explain the rights each of the parents have.

In order to compare the parental responsibilities and rights of different types of parents we can place the rights and responsibilities in four separate boxes, namely –

• guardianship;
• care;
• contact; and
• maintenance (financial support).

The number of rights and responsibilities a parent has depends on the type of relationship the parent has with the child/children and can be summarised as follows –

• married biological mothers and fathers;
• divorced biological mothers and fathers; and
• unmarried biological mothers have full parental responsibilities and rights, which includes contact and maintenance (financial support).

Unmarried biological fathers only have specified parental responsibilities and rights, which includes contact and maintenance (financial support). Unmarried father’s parental responsibilities and rights do not include guardianship and care.

A court can give a parent more responsibilities and rights if their parental rights and obligations do not include all four bullet points.

Pertinent questions

Here are some important questions and answers pertaining to different parents and their rights and responsibilities:

When can an unmarried father obtain parental rights and responsibilities towards his child/children?

An unmarried father can obtain parental rights and responsibilities in the following circumstances:

• if he was living with the child/children’s mother at the time of the child/children’s birth; or
• if he, regardless of whether he has or is living with the mother of the child/children –

– consents or applies to be identified as the child/children’s father, or pays damages in terms of customary law;
– contributes or has attempted in good faith to contribute to the child/children’s upbringing for a reasonable period; and
– maintenance of the child/children for a reasonable period.

How can an unmarried father obtain parental rights and responsibilities?

Guardianship or contact and care can be assigned to an interested person by an order of the court if –

• the unmarried father only wants to apply for care and/or contact, he can do so in the Children’s Court; or
• the unmarried father wants to apply for guardianship, an application must be made in the High Court.

The High Court is the only court that can give a person permission to become a guardian. A Children’s Court can give a person permission to care and contact.

What factors will the court consider when an application for parental rights and responsibilities is lodged?

The court will consider:

• The best interests of the child.
• The relationship between the unmarried father and the child/children, any other person and the biological mother.
• The commitment the unmarried father has shown towards the child/children.
• Whether the unmarried father has contributed or attempted to contribute to the maintenance of the child.
• Any other factor the court considers to be relevant, such as –

– a history of violence towards child/children;
– the effect of separating the child from their mother; or
– the child/children’s voice according to ss 7(n) and 10 and 31; in relation to the relief sought in the application.

Does an unmarried biological father have to pay maintenance towards his child/children?

Yes, an unmarried father has a duty to maintain his child/children and the child/children have a right to be maintained.

The unmarried father not only acquires the parental right to have contact with the child/children, but also acquire the parental responsibility to contribute towards the maintenance of his child/children.

It is important to note that maintenance and access are treated separately in terms of South African law. This means that both parents have a right to see their child/children regardless if maintenance is paid.

Does an unmarried father automatically have guardianship of his child/children?

No, as shown above only married biological mothers and fathers, divorced biological mothers and fathers and unmarried biological mothers have full parental responsibilities and rights, which includes guardianship.

What happens if the unmarried couple are both under the age of 18 and the girl falls pregnant? For s 19(2) to apply, both biological parents must be minors or mentally disadvantaged in some way. In such a scenario the guardian of the mother becomes the guardian of the child/children.

Must an unmarried father be considered when making important decisions regarding his child/children?

• Only a child’s guardian can consent to –

– the child’s adoption;
– the child’s application for a passport;
– the departure or removal of the child from SA;
– the child’s marriage; or
– the alienation or encumbrance of any immovable property of the child.

If a child has more than one guardian, the consent of all the guardians are necessary in respect of the matters listed above.

Legal guardianship can be acquired with a High Court application or in a parent’s last will and testament.

If an unmarried father does not have guardianship, his consent in respect of the above matters is not required.

A good way forward is to consider parental responsibilities and rights agreements in terms of s 22

• The mother or any other person who has parental responsibilities and rights in respect of the child/children may enter into an agreement with the biological father who does not have s 20 and 22 parental responsibilities and rights.
• In the same manner any other person with an interest in the care, well-being and development of the child/children can also acquire these rights.
• More than one person may hold these rights to the same child/children.
• Examples include: Step-parents, siblings, grandparents, aunts and uncles and, even care-givers.
• Such a parental responsibilities and rights agreement (PRR) must be in the prescribed format with correct particulars, to take effect when registered with the Family Advocate’s Office or made an order of the High Court, or the Children’s Court on application by the parties to the agreement, if no specifics regarding guardianship is contained.
• Only the High Court may confirm, amend or terminate a parental responsibilities and rights agreement that relates to the guardianship of a child.

A parenting plan or PRR agreement should exist whether or not you were married.

The parenting plan will outline which parent the child lives with, the amount of time the child will spend with each parent, how maintenance will be paid, how you will go about making major decisions about the child and how parents will work out any major disagreements.

Marici Corneli BIuris (UP) is the Director at Family Assist and a Mediator at Mediationworx in Pretoria.

This article was first published in De Rebus in 2019 (JanFeb) DR 45.