How SA law protects the parental rights of unmarried fathers

Thousands of unmarried South African fathers are unfairly denied access to their children. Many suffer the indescribable heartache of being separated from their sons and daughters while unaware of the fact that our law protects their rights to nurture relationships with their children born out of wedlock.

According to Statistics South Africa’s 2019 General Household Survey, most children (42%) live with their mothers, while 4% live with their fathers. About one-fifth (21.3%) do not live with their parents, while 32.7% share a home with both their parents.

Although the reasons behind these statistics vary, we often read or hear about the struggles faced by fathers of children born out of wedlock, who want to see and care for their children.

“The most common challenge that unmarried fathers face is being denied contact with their children due to customary traditions and/or being subjected to obstacles by the mother and her family,” says Sikelela Masumpa, an associate at law firm Adams and Adams.

He explains how, through the application of the Children’s Act, a father of a child may obtain full parental rights and responsibilities, which can be divided into three types – to care for a child, to keep contact with a child, and to act as guardian of that child.

The Children’s Act is considered watershed legislation in that it changed the dire position unmarried fathers faced prior to it coming into force more than 10 years ago. Prior to its enactment, Masumpa says, biological fathers of children born out of wedlock did not acquire automatic rights and responsibilities.

He summarises the enlightened current position:

Section 21 of the Act provides certain conditions that must be fulfilled by a biological father who wishes to obtain parental rights and responsibilities in regard to his minor child born out of wedlock, namely:

• At the time of the child’s birth, he is/was living with the mother in a permanent life-partnership;
• Or, regardless of whether he has lived or is living with the mother, he consents to be identified or successfully applies to be identified as the child’s father or pays damages in terms of customary law; and
• Contributes, or has attempted in good faith, to contribute towards the child’s upbringing and expenses in connection with the maintenance of the child for a reasonable period.

This means that the father may obtain full parental rights and responsibilities through either sections 20 or 21, or by entering into a parental responsibilities and rights agreement with the mother of a child in terms of Section 22 of the act.

Masumpa implores unmarried fathers to make use of the act to ensure that they acquire parental rights and responsibilities in respect of their children. This, he stresses, is possible regardless of their relationship with the mother. “In most circumstances, it is in the best interests of the minor child to have a bond with his or her father,” Masumpa concludes.