When a child is born, it is expected that the mother of the child will have automatic parental rights and responsibilities such as care, contact and guardianship in respect of the child. The legal position of mothers with regards to their children is the same whether they are married or not. However, the same cannot be said for their counterparts, the fathers.

When a child is born, it is expected that the mother of the child will have automatic parental rights and responsibilities such as care, contact and guardianship in respect of the child. The legal position of mothers with regards to their children is the same whether they are married or not. However, the same cannot be said for their counterparts, the fathers.

The Children’s Act

The Children’s Act 38 of 2005 regulates matters relating to children with the aim to protect and promote their rights. It also defines the rights and responsibilities that parents have in respect of their children. Are the parental rights and responsibilities of a mother and a father the same? The answer can be found in Chapter 3 of the Children’s Act as it regulates the various parental rights and responsibilities. Section 19 of the Children’s Act states that the biological mother of a child, whether married or unmarried, has full parental rights and responsibilities in respect of the child. Section 20 of the Children’s Act provides that the biological father of a child will have full parental rights and responsibilities in respect of the child only if he is married to the mother of the child or was married to the mother of child at the time of the child’s conception or birth. Should the biological father of the child be unmarried, section 21 states that he will acquire full parental rights and responsibilities in respect of the child only if at the time of the child’s birth he is living with the mother in a permanent life-partnership, or he consents to being identified or has applied in terms of section 26 to be identified as a father, or should the parents identify under customary rites, the father pays damages in terms of customary law as well as makes a contribution in good faith towards the upbringing of the child.

Unlike the mother of a child, a father’s parental rights and responsibilities are not automatic, they are conditional and dependent on the relationship he has with the mother of the child. What happens when the father of a child born out of wedlock does not meet any of the above requirements outlined in the Children’s Act? A father may apply to Court in terms of Section 2(1) of the Natural Fathers Born Out of Wedlock Act 86 of 1987 for access, custody or guardianship in respect of the child.

The surname of the child

Section 10 of Births and Deaths Registration Act 51 of 1992 states that notice of birth of a child born out of wedlock will be given under the surname of the mother of the child, or at the joint request of the mother and the person who acknowledges in writing that he is the father of the child, under the surname of the person who has made such acknowledgement. Further, notice of birth of a child born out of wedlock may also be given under the surname of the mother of the child, with the details of the father of the child inserted on the birth certificate provided that the mother consents to it.

It is clear from this provision that the unmarried father’s position in respect of the child’s surname is also dependent on the relationship he has with the mother of a child as she needs to provide consent. This presented a problem for unmarried fathers as they could not register the birth of their children without the involvement of the mother of the child.  Situations could arise in which the consent of the mother cannot be acquired because she is either unreasonably withholding it or is unable to give said consent due to illness, absence or other factors.

The above problem was dealt with by the Constitutional Court in the case Centre for Child Law v Director-General: Department of Home Affairs {2021] ZACC 31 where the court confirmed that section 10 of the Births and Deaths Registration Act is unconstitutional. The Court found that there is no justifiable reason for the differentiation between married fathers and unmarried fathers for the purposes of determining the surname given to children. The court held that section 10 unfairly discriminates against both unmarried fathers and their children based on social origin and birth which ultimately infringes on their right to dignity and the children’s right to have their best interest to be of paramount importance. Hence, the severance of section 10 means that unmarried fathers may have the notice of birth of their children be given under their surname without the need for the involvement of the mother of the child.

What happens when a father wishes to change the surname of his child born out of wedlock? Should a father wish to change the surname of his child born out of wedlock, he needs to apply to the Director-General in terms of section 25(2) of the Births and Deaths Registration Act for the alteration of the child’s surname to his surname.  Should the Director-General refuse such application as he has full discretion, the father may apply to Court for a review.

The Constitution

The Constitution is the supreme law of the land and any law or conduct that in inconsistent with it is invalid. Section 28(2) of the Constitution states that the child’s best interest is of paramount importance in every matter concerning the child. Any matter relating to a child will be decided based on what is best for the child. The decisions Courts and Director- General must always place the child’s best interest above all else as necessitated by the Constitution.

Each case will differ based on its surrounding circumstances and the rights and responsibilities of both the mother and the father will be considered, but ultimately, it is the best interest of the child that will prevail.

The Children’s Act 38 of 2005 regulates matters relating to children with the aim to protect and promote their rights. It also defines the rights and responsibilities that parents have in respect of their children. Are the parental rights and responsibilities of a mother and a father the same? The answer can be found in Chapter 3 of the Children’s Act as it regulates the various parental rights and responsibilities. Section 19 of the Children’s Act states that the biological mother of a child, whether married or unmarried, has full parental rights and responsibilities in respect of the child. Section 20 of the Children’s Act provides that the biological father of a child will have full parental rights and responsibilities in respect of the child only if he is married to the mother of the child or was married to the mother of child at the time of the child’s conception or birth. Should the biological father of the child be unmarried, section 21 states that he will acquire full parental rights and responsibilities in respect of the child only if at the time of the child’s birth he is living with the mother in a permanent life-partnership, or he consents to being identified or has applied in terms of section 26 to be identified as a father, or should the parents identify under customary rites, the father pays damages in terms of customary law as well as makes a contribution in good faith towards the upbringing of the child.
Unlike the mother of a child, a father’s parental rights and responsibilities are not automatic, they are conditional and dependent on the relationship he has with the mother of the child. What happens when the father of a child born out of wedlock does not meet any of the above requirements outlined in the Children’s Act? A father may apply to Court in terms of Section 2(1) of the Natural Fathers Born Out of Wedlock Act 86 of 1987 for access, custody or guardianship in respect of the child.
The surname of the child
Section 10 of Births and Deaths Registration Act 51 of 1992 states that notice of birth of a child born out of wedlock will be given under the surname of the mother of the child, or at the joint request of the mother and the person who acknowledges in writing that he is the father of the child, under the surname of the person who has made such acknowledgement. Further, notice of birth of a child born out of wedlock may also be given under the surname of the mother of the child, with the details of the father of the child inserted on the birth certificate provided that the mother consents to it.
It is clear from this provision that the unmarried father’s position in respect of the child’s surname is also dependent on the relationship he has with the mother of a child as she needs to provide consent. This presented a problem for unmarried fathers as they could not register the birth of their children without the involvement of the mother of the child. Situations could arise in which the consent of the mother cannot be acquired because she is either unreasonably withholding it or is unable to give said consent due to illness, absence or other factors.

The above problem was dealt with by the Constitutional Court in the case Centre for Child Law v Director-General: Department of Home Affairs {2021] ZACC 31 where the court confirmed that section 10 of the Births and Deaths Registration Act is unconstitutional. The Court found that there is no justifiable reason for the differentiation between married fathers and unmarried fathers for the purposes of determining the surname given to children. The court held that section 10 unfairly discriminates against both unmarried fathers and their children based on social origin and birth which ultimately infringes on their right to dignity and the children’s right to have their best interest to be of paramount importance. Hence, the severance of section 10 means that unmarried fathers may have the notice of birth of their children be given under their surname without the need for the involvement of the mother of the child.
What happens when a father wishes to change the surname of his child born out of wedlock? Should a father wish to change the surname of his child born out of wedlock, he needs to apply to the Director-General in terms of section 25(2) of the Births and Deaths Registration Act for the alteration of the child’s surname to his surname. Should the Director-General refuse such application as he has full discretion, the father may apply to Court for a review.

When a child is born, it is expected that the mother of the child will have automatic parental rights and responsibilities such as care, contact and guardianship in respect of the child. The legal position of mothers with regards to their children is the same whether they are married or not. However, the same cannot be said for their counterparts, the fathers.

The Children’s Act

The Children’s Act 38 of 2005 regulates matters relating to children with the aim to protect and promote their rights. It also defines the rights and responsibilities that parents have in respect of their children. Are the parental rights and responsibilities of a mother and a father the same? The answer can be found in Chapter 3 of the Children’s Act as it regulates the various parental rights and responsibilities. Section 19 of the Children’s Act states that the biological mother of a child, whether married or unmarried, has full parental rights and responsibilities in respect of the child. Section 20 of the Children’s Act provides that the biological father of a child will have full parental rights and responsibilities in respect of the child only if he is married to the mother of the child or was married to the mother of child at the time of the child’s conception or birth. Should the biological father of the child be unmarried, section 21 states that he will acquire full parental rights and responsibilities in respect of the child only if at the time of the child’s birth he is living with the mother in a permanent life-partnership, or he consents to being identified or has applied in terms of section 26 to be identified as a father, or should the parents identify under customary rites, the father pays damages in terms of customary law as well as makes a contribution in good faith towards the upbringing of the child.

Unlike the mother of a child, a father’s parental rights and responsibilities are not automatic, they are conditional and dependent on the relationship he has with the mother of the child. What happens when the father of a child born out of wedlock does not meet any of the above requirements outlined in the Children’s Act? A father may apply to Court in terms of Section 2(1) of the Natural Fathers Born Out of Wedlock Act 86 of 1987 for access, custody or guardianship in respect of the child.

The surname of the child

Section 10 of Births and Deaths Registration Act 51 of 1992 states that notice of birth of a child born out of wedlock will be given under the surname of the mother of the child, or at the joint request of the mother and the person who acknowledges in writing that he is the father of the child, under the surname of the person who has made such acknowledgement. Further, notice of birth of a child born out of wedlock may also be given under the surname of the mother of the child, with the details of the father of the child inserted on the birth certificate provided that the mother consents to it.

It is clear from this provision that the unmarried father’s position in respect of the child’s surname is also dependent on the relationship he has with the mother of a child as she needs to provide consent. This presented a problem for unmarried fathers as they could not register the birth of their children without the involvement of the mother of the child.  Situations could arise in which the consent of the mother cannot be acquired because she is either unreasonably withholding it or is unable to give said consent due to illness, absence or other factors.

The above problem was dealt with by the Constitutional Court in the case Centre for Child Law v Director-General: Department of Home Affairs {2021] ZACC 31 where the court confirmed that section 10 of the Births and Deaths Registration Act is unconstitutional. The Court found that there is no justifiable reason for the differentiation between married fathers and unmarried fathers for the purposes of determining the surname given to children. The court held that section 10 unfairly discriminates against both unmarried fathers and their children based on social origin and birth which ultimately infringes on their right to dignity and the children’s right to have their best interest to be of paramount importance. Hence, the severance of section 10 means that unmarried fathers may have the notice of birth of their children be given under their surname without the need for the involvement of the mother of the child.

What happens when a father wishes to change the surname of his child born out of wedlock? Should a father wish to change the surname of his child born out of wedlock, he needs to apply to the Director-General in terms of section 25(2) of the Births and Deaths Registration Act for the alteration of the child’s surname to his surname.  Should the Director-General refuse such application as he has full discretion, the father may apply to Court for a review.

The Constitution

The Constitution is the supreme law of the land and any law or conduct that in inconsistent with it is invalid. Section 28(2) of the Constitution states that the child’s best interest is of paramount importance in every matter concerning the child. Any matter relating to a child will be decided based on what is best for the child. The decisions Courts and Director- General must always place the child’s best interest above all else as necessitated by the Constitution.

Each case will differ based on its surrounding circumstances and the rights and responsibilities of both the mother and the father will be considered, but ultimately, it is the best interest of the child that will prevail.

The Constitution is the supreme law of the land and any law or conduct that in inconsistent with it is invalid. Section 28(2) of the Constitution states that the child’s best interest is of paramount importance in every matter concerning the child. Any matter relating to a child will be decided based on what is best for the child. The decisions Courts and Director- General must always place the child’s best interest above all else as necessitated by the Constitution.

Each case will differ based on its surrounding circumstances and the rights and responsibilities of both the mother and the father will be considered, but ultimately, it is the best interest of the child that will prevail.

Children born out of wedlock Father's rights