Unmarried Fathers

Recently I have represented several unmarried fathers who are at pains to have contact with and be involved in the lives of their minor children but the mothers are simply refusing contact or being completely obstructive and doing everything in their power to not allow the father near his minor children. One mother simply packed her minor children up and moved them to the United Kingdom while another mother drove through farm gates while the minor child was in the car in order to stage that she was being attacked by the father!

On about 4 September 1998, The Natural Fathers of Children born out of Wedlock Act, No. 86 of 1997, came into operation which created the possibility of a Court granting guardianship, custody or access to an unmarried father, subject to certain conditions. This Act has now been repealed and replaced by s21 of the Children’s Act, No. 38 of 2005.

An unmarried father now has full parental responsibilities and rights in respect of a child born out of wedlock, if –
a) at the time of the child’s birth he is living with the mother in a permanent life-partnership; or
b) he, regardless of whether he has lived or is living with the mother –
i. consents to be identified as the child’s father or pays damages in terms of customary law;
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 reasonable period.

If there is a dispute between the unmarried father and the mother of the child with regard to the fulfilment by the father of the conditions as set out above, the matter must be referred for mediation to a Family Advocate, Social Worker, Social Service Professional or other suitably qualified person.

I would like to highlight that s21 applies from 1 July 2007 regardless of whether a child was born before or after the commencement of the Act.

In terms of s22 the mother of a child may enter into an agreement providing for the acquisition of parental responsibilities and rights in respect of the child with the biological father of the child who does not have parental responsibilities and rights in terms of s21 (unmarried fathers) or by Court Order. An unmarried father who, for whatever reason, does not comply with the conditions of s21(1), may still have such responsibilities and rights in terms of an agreement with the mother.

In light of the above and in most circumstances today unmarried fathers do satisfy the requirements of s21 and therefore have the same rights and responsibilities as mothers.