You and Your Rights

When a child becomes 'legitimate'

Obtaining financial help

An unmarried mother who chooses to bring up her child herself must provide support until the child reaches the age of majority or becomes self-supporting. If the mother wants financial support from the father, she should instruct an attorney to draw up a contract for signature by the father or alternatively obtain a court order (a maintenance order) against him.

A private agreement between the mother, the father and the child, where the father agrees to support the child, can be enforced by the courts like any other contract, provided both the mother and the father intended it to be legally binding.

Even if the father provides financial support for the child in terms of an agreement, the mother can still apply for a court order against him. The court, however, will take the existing agreement into account when deciding on how much maintenance it will award.

Applying for a maintenance order

An unmarried woman who is about to give birth, or who has already done so, can apply to the maintenance officer at a magistrate's court for a maintenance order requiring the alleged father to pay towards the upkeep of the child. The application can be made irrespective of the woman's status - single, widowed, divorced, or even, in certain circumstances, married.

To begin the procedure, the woman must swear under oath before the maintenance officer that the man whom she claims to be the father has failed to maintain the child. The maintenance officer will summon the father to appear at an inquiry into the provision of maintenance for the child. At this inquiry, the alleged father will be invited to provide evidence or produce any relevant book, document or statement, including a statement giving full particulars of his earnings, signed by his employer.

Only those whose presence is required may attend the hearing. Both the mother and the father (who may be represented by an attorney or an advocate) must attend the hearing. An order may be made against a father even if he is not present at the inquiry, provided it is made in accordance with his written consent, which must be produced at the inquiry by the maintenance officer.

The name or address of anyone under the age of 18 who is involved in an inquiry may not be published; nor may the name of a school or any other information likely to reveal that person's identity, unless the relevant minister of state or the presiding judicial officer (magistrate) of the maintenance court gives written permission for publication. In any case, maintenance court proceedings are rarely reported in the press.

All evidence at the hearing is given under oath and must be recorded by the presiding judicial officer. After all the testimony has been heard, the presiding judicial officer may make an order against the father of the child for payment of maintenance in specified instalments, which are usually to be paid to an official at the magistrate's court.

If the child is at any time committed to a place of safety or a reform school, or placed in alternative custody in terms of the Child Care Act, 1983, or the Criminal Procedure Act, 1977, the father can be ordered to pay the maintenance in terms of a court order direct to the authority or person having custody of the child.

Duration of the order

Generally, a maintenance order lasts until the child reaches the age of majority or becomes self-supporting.

If the child is still not self-supporting after reaching majority because of a disability or an inability to find employment, the father must continue to make maintenance payments if the child applies for a new order. Although a maintenance order may cease on the death of the father, the mother can claim maintenance for the child from the father's estate.

What can be claimed?

All children are entitled to financial support from both parents - even though the amount of the parents' contributions will depend on their respective financial positions. If, for example, the father is wealthy and the mother poor, the father's contribution to the child's upkeep will be far greater, in proportion to the mother's, than would normally be the case.

Whether the child is entitled to maintenance to provide for luxuries, or simply for the bare necessities of life, will depend on the parents' means.

In some cases, the mother may claim the expenses of her confinement as well as damages for seduction and breach of promise. If she loses income as the result of her pregnancy or the birth of the child, she usually cannot claim damages from the father, but she may be able to claim maintenance from him to tide her over this period.

If the child is still-born, or dies while very young, the mother may claim a proportion of funeral expenses from the father, although maintenance will cease at the death of the child.

Changing a maintenance order

A maintenance order can be varied if the financial circumstances of the father or the mother change. If, for instance, the father loses his job, becomes ill or acquires a second family and additional financial commitments, he may no longer be able to pay according to the maintenance order. However, the courts have consistently held that a parent cannot generally use the costs of a second marriage to the detriment of the child. If the inability to pay is temporary, a father can apply to the court to relieve him of the obligation to pay during a period of crisis. He can also apply for a variation of the order if the mother marries someone who is prepared to take on responsibility for the child. If the mother's husband adopts the child, all the obligations of the natural father come to an end.

Applications for a variation of a maintenance order can be made only at the court in the area where the child (or the child's mother) lives.

Proving paternity

If an unmarried mother wishes to claim maintenance from the father of her child, the presiding judicial officer of the maintenance court must be satisfied that the man she names is the father. If the man denies that he is the father, the onus is on the mother to prove her allegations on a balance of probabilities.

Normally the court will not accept the woman's word against the man's if there is no other evidence available. If, however, the mother can provide further evidence to corroborate her story, she will be granted maintenance.

Her additional evidence could take various forms. For example, it could be:

• A letter written by the man that contradicts his evidence in court;
• A witness to whom the man admitted to being the father.

The fact that the man did not answer a letter or statement accusing him of being the father is not regarded as corroboration - unless it is evident that an innocent person would have replied.

Evidence that the parties were courting at the time, or that they had the opportunity for sexual intercourse, is not sufficient proof, unless the circumstances suggest that it was highly probable that they had sexual intercourse, or it can be shown that the man was lying about the opportunity.

In some cases where the child has been shown to have a marked resemblance to the alleged father, the courts have accepted this fact as corroboration of the mother's story.

Once it has been proved that the alleged father had sexual intercourse with the unmarried mother at any time that the child could have been conceived, the law will presume that he is the child's father - unless he can prove on a balance of probabilities that he is not. A man cannot cast doubt on his paternity by proving that a contraceptive was used at the time of intercourse with the child's mother or that she had intercourse with other men.

Blood or DNA tests

The court can order a blood or dna test on the child at the request of the mother or the alleged father. If the alleged father refuses to take a test, the court will presume that his refusal is aimed at concealing the fact that he is the father of the child. (See blood tests.)

Conversely, a mother is not obliged to submit to a test but her failure to do so may be negatively construed by the court. It may suggest she does not want the true father's identity to be known.

Inheritance

Except in intestacy, a child born out of wedlock does not have the same rights as a child born to parents who are married to each other, to inherit from the parents.

However, in terms of the Wills Act, 1953, any reference to a child or children is deemed to include children born out of wedlock. Both the father and the mother have the right to provide for a child born out of wedlock in their wills. (See wills.)

If the wording of the will is ambiguous, the courts would conclude that a parent who has, for example, left property to his or her 'children', without specifying them by name, intended to benefit all the children, whatever their status.

The same applies to the will of any other person who leaves property without specifying whether a child born out of wedlock should inherit property along with legitimate children. If either or both the mother and the natural father die without leaving a will, their children, irrespective of status, have exactly the same rights of inheritance from the intestate estate. The same applies if their parents' relatives die. (See intestacy.)

If a parent, say the father, of a child born out of wedlock dies, the duty of support that rested on him passes to his estate. If, say, it is the mother who dies and her estate cannot meet this duty of support, her parents will have to assume responsibility for supporting the child.

In the past, such a duty was never shouldered by the father's parents, but in view of the constitutional provisions for gender equality, the law is likely change in regard to distinctions made between the respective rights and obligations of a mother and father.