Please note that since this book was last published in 1997 some of the laws that have been referenced may have changed. We
are doing our best to update the articles, however, it is advisable that you to consult an attorney before relying on any information contained herein.
'Born out of wedlock' is the term used to describe a child
born to parents who are not married to each other. If the parents
marry at a later date under certain circumstances, the child
In the past, children born out of wedlock suffered many legal
disabilities as well as a social stigma. Today, however, most of
these impediments have been removed - for modern law has decreed
that a child cannot be blamed for its status.
If an unmarried mother finds that the father of her child is
not prepared to support her, she can approach the Child Welfare
Society, which has branches in all the major centres of the
country, or the local magistrate's court maintenance officer for
assistance. The society also offers advice to unmarried expectant
Social workers at local branches of the Department of Welfare
and Social Services can be approached about whether an unmarried
mother qualifies for financial assistance from the state in terms
of the Social Pensions Act, 1973.
Registering the birth
All births in South Africa must be registered. Although
children born out of wedlock are generally registered under their
mothers' names, in certain circumstances they can be registered
under their fathers' name. The surname of a child born out of
wedlock can also be changed should the mother subsequently marry
the father. (See birth
The mother's rights and duties
Because there is no doubt that the mother is the parent of her
child, an unmarried mother has a clearly defined legal
relationship with her child; a child born out of wedlock takes
his or her nationality and domicile
from the mother.
Normally an unmarried mother enjoys both legal guardianship
and custody of her child - unless she herself is a minor, in which case she cannot
become the guardian of the child. In such an instance, the
mother's legal guardian will become the guardian (unless a
competent court decides otherwise) until the mother marries or
comes of age.
Generally, a mother who is not a minor may deal with her
child's property and act on the child's behalf in legal
proceedings. However, the mother or any guardian may not sell
immoveable property of a minor without the authority of the
Supreme Court or the Master of the Supreme Court, depending on
the value of the property.
An unmarried mother can also apply to change her child's name
in terms of the Births and Deaths Registration Act, 1992, and the
Aliens Control Act, 1991, and have her child made a South African
citizen by naturalisation. If the child wants to enter into a
contract, or become engaged or marry, only her consent is needed.
The mother of a child born out of wedlock is entitled to
custody of her child even if she is a minor. Only if it is proved
that she is unfit to have custody because, say, she failed to
provide proper care for her child, can the child be taken from
her and placed in alternative custody.
The Supreme Court as the upper guardian of all minor children,
irrespective of their legal status, may intervene at any time if
a child's welfare is deemed to be endangered in any way.
The natural father's duties and rights
Although a father has no parental authority over a child born
out of wedlock, he has a legal duty to support the child. If he
does not do so voluntarily, the mother can obtain a court order
In some cases, where the mother consents, the father has a
right of reasonable access to any child born out of wedlock.
Whether or not he is paying maintenance is not the criterion; the
criterion is whether access by the father is in the best interest
of the child.
A natural father who believes that the mother is not providing
the child with proper care may apply to the Supreme Court for an
order depriving the mother of custody or even of guardianship of the child. If the
court agrees with the father's claims, it may award custody or
guardianship to him or to a third party who, in its opinion, is
able to care for the child.
As the law stands at present, the natural father and the third
party stand an equal chance of having custody, the test, once
again, being what is in the best interest of the child.
The natural father has few rights over a son or daughter born
out of wedlock. In fact, the law does not even consider him to be
related to his child, although the laws prohibiting incestuous
marriages apply to a child born out of wedlock and its natural
father's family. (See marriage.)
In 1996 a new bill aimed at changing the rights of fathers of
children born out of wedlock was proposed. In terms of the Powers
of Natural Fathers of Children Born out of Wedlock Bill, fathers
not legally married to the mothers of their children can ask the
court to grant them custody, adoption
rights and guardianship, pro-vided that these are consistent with
the interests of the child. The bill also proposed making it
compulsory for mothers to notify the natural father if they
intend putting a child up for adoption.