Many people choose to have children without getting married, and then cohabit or continue to live separate lives.
Due to these circumstances, when the relationship breaks down there are no assets to divide, and the key issue then centres around maintenance and support from the father, as well as the father's right to contact his child.
In many cases, the mother limits or denies the father any access to the child, because she might feel as though her decision is in the best interest of the child. However, in most of these situations, the only person who actually loses is the child.
The Children's Act does not focus on parental rights, but rather on the rights of the child.
The Act ensures that the best interest of the child is of top priority in matters concerning protection, care and well-being. The Act also sets out a list of factors that must be taken into account when deciding what is best for the child.
The Children's Act also sets out that a parent may have full or specific rights to the child.
Parental rights and responsibilities refer to the rights that a parent has in terms of the Children's Act, and the responsibility that the parent has to care for the child, contribute to the maintenance of the child, and maintain contact with the child.
When a parent has full parental rights and responsibilities, it means that he or she is entitled to all the rights in terms of the Act. However, having specific parental rights and responsibilities means that the parent only has specific rights in terms of the Act.
Parental rights and responsibilities can be acquired through an agreement, a will or a court. However, biological parents obtain automatic rights and responsibilities in terms of the Act, although the rules are different for biological mothers, married biological fathers and unmarried biological fathers.
The biological mother has full parental rights and responsibilities in respect of her child, based on the fact that she has given birth to the child.
The biological father only has full parental rights and responsibilities if he was married to the child's mother at the time of the child's conception and birth, if he is married to the child's mother, and if he was married to the child's mother at any time after the birth.
Despite the fact that unmarried fathers can also play a beneficial role in the lives of their children, the Children's Act does not confer automatic or inherent parental rights to an unmarried biological father the same way it does for the mother.
An unmarried biological father can only acquire automatic parental rights and responsibilities if he was living with the mother of the child at the time of the child's birth and chose not to get married, if he consents to being identified as the father of the child, if he is registered as the biological father in the child's birth certificate, or if he had paid for damages in terms of customary law.
For more advice on Parental Rights, or for assistance with legal matters pertaining to family law, contact the family law attorneys at Van Deventer and Van Deventer Incorporated.
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This is the second and final part of our “preparing for divorce checklist” series which looks at all the financial considerations when getting divorced in South Africa.
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