The law in South Africa used to heavily favour mothers of minor children born out of wedlock in regard to care and contact (now known as primary residency and access) of the child or children. The father was always put at a disadvantage by the law and ultimately by the courts when the primary residency parent of a child was determined. It was almost a given that the father would be granted access to the child every second weekend from Friday to Sunday, regardless of the specific facts of the case.
Although the current situation still favours mothers of a minor child born out of wedlock, the Children’s Act, (referred to as “The Act”), has now been amended and incorporates an updated version of what was previously known as The Natural Fathers of Children Born out of Wedlock Act. More specifically, Chapter 3 of the Act, titled “Parental Responsibilities and Rights” is now the chapter in which the rights of each parent are listed and discussed in detail. According to this chapter, the mother and father of a minor child share equal and joint parental rights and responsibilities in respect of such a child, irrespective of whether the parents of the child were married or not at the time of the child’s birth. The Act therefore provides a father of a child born out of wedlock with the same rights in respect of the child as a father of a child born of a marriage.
The Act states the following, when referring to the rights and responsibilities of unmarried fathers – the biological father of a child born out of wedlock acquires full parental responsibilities and rights in respect of the child if, at the time of the child’s birth, he is living with the mother in a permanent life partnership or if he (regardless of whether he has lived or is living with the mother) consents to being identified or successfully applies to be identified as the child’s father or contributes or has attempted in good faith to contribute to the child’s upbringing or towards expenses in connection with the maintenance of the child for a reasonable period.
This means that, should a father meet the above requirements, both the mother and father of the child are equally and jointly responsible for the protection, maintenance and upbringing of the child but in turn should also spend equal or similar amount of quality time with the child. Therefore, the right to see and spend time with the child is also coupled with the right (and responsibility) to maintain and protect the child. This does not however mean that access and maintenance in our law are now linked. Many fathers are not aware that they are still allowed and entitled to enjoy access to their child, even in circumstances where they are not in the financial position to provide maintenance for the child. These two concepts are kept completely separate in our law and therefore a mother can never argue that a father should not be allowed access to his child because he does not pay maintenance.
In South Africa, the High Court is considered the uppermost legal guardian of all minor children in South Africa and as such the best interests of the minor child will always be the deciding factor and are therefore of paramount importance when the court is involved (if there is an access application underway). If there is a dispute as to whether the father has met the requirements set out in the Act (mentioned above) to enable him to exercise his rights and responsibilities as an unmarried father, the matter will be referred to the Office of the Family Advocate, where a social worker and an advocate will be appointed to investigate the case. This investigation will involve interviews and potentially home visits which will assist them in making a final written recommendation to the High Court. This recommendation will contain what they recommend in terms of a custody and access arrangement that would be in the best interests of the child. The Court will almost always follow the recommendation of the Family Advocate, therefore it is of the utmost importance to make a good impression with them. It is advisable to have a professional (such as a Family Law attorney) involved who is familiar with the process and the people involved as this will ensure that the best outcome possible is reached.
It is still challenging but is now far easier for a father of a child born out of wedlock to secure fair and reasonable access (and in some cases, even primary residency) to their child, especially with the assistance of an experienced Family Law attorney.