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You and Your Rights

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You and Your Rights

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.

Wedlock, Children Born Out Of

Offspring of unmarried parents

'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 becomes legitimate.

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 mothers.

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 registration.)

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 against him.

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.

When a child becomes 'legitimate'

THE CHILD STATUS
A child conceived and born after marriage Legitimate
A child conceived in marriage, but born after the husband's death Legitimate
A child born to unmarried parents who at a later date get married Legitimate from the date the parents marry
A child born to parents who later divorce Remains legitimate
A child born to parents who were married to other people but who later divorce to marry each other Legitimate from the time the parents marry, in certain circumstances
A child of a marriage later found to have been null and void - for example, a bigamous marriage, or one in which one party was forced to marry or was under age Legitimate, if at the time of the marriage, or of conception, one party believed the marriage was valid
A child of a voidable marriage - that is, a marriage that becomes void if either the husband or the wife obtains a court decree 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.

Warning - If the father fails to pay maintenance

A father who fails to comply with the terms of a maintenance order is guilty of committing an offence and is liable to a fine or imprisonment. Even if he pays the fine or goes to prison, he will still be required to pay the outstanding maintenance.

In such circumstances the court may order the father's employer to deduct the maintenance payments from his wages or salary and pay them as directed by the maintenance officer.

Failure by the father to inform the person to whom he must make the payments of any change of address is also an offence.

If the father leaves the country

If the father leaves the country it may still be possible for the child's mother to have a maintenance order granted against him, in terms of the Reciprocal Enforcement of Maintenance Orders Act - if he is living in a country that has a reciprocal agreement on maintenance orders with South Africa.

In such a case the South African court will provide the Minister of Justice with:

  • A certified copy of a provisional maintenance order;
  • All the witnesses' depositions;
  • All the details of the grounds on which the order might have been opposed;
  • Any information that might assist in identifying and locating the father.

The minister will forward the documents through diplomatic channels to the authorities in the country where the father is living. On receiving these documents, a maintenance court in that country can confirm the order and arrange for maintenance payments to be sent back to South Africa. If the father leaves South Africa after a maintenance order has been made against him, a certified copy of the order may be sent to the Minister of Justice, who will again arrange for it to be forwarded through diplomatic channels to the authorities of the country where the father is now living.As long as that country is one of the proclaimed countries referred to in the Reciprocal Enforcement of Maintenance Orders Act, the order will be enforced.

If the father disappears

There is little a mother can do if the child's father 'disappears'. She will have to track down the father herself, and inform the maintenance officer of his whereabouts once she has located him.

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.

Warning - When a wife gives birth to another man's child

If a married woman has a child by someone other than her husband, that child is deemed to be the child of her husband and will technically be legitimate. If paternity is disputed, however, a competent court might grant an order declaring the husband not to be the father, thus changing the status of the child to one born out of wedlock.

When registering the birth, therefore, the mother has three choices:

  • She can register the child in her own name without mentioning the father;
  • She can register the child with the consent and the participation of the true father, in which case the child can be given the surname of the father;
  • If the woman is married, she can register her husband as the father of the child, even if he is not. 

The child will be regarded as legitimate if the mother is married - unless there is strong evidence against this, for example, that the husband was absent from home at the time conception must have taken place. Note, however, that a child registered as being born out of wedlock can later be registered as legitimate.

There is nothing to stop a married woman who has a child by another man and who later goes to live with him from re-registering the child in her lover's name.

The woman's former husband, though not the father of the child, has all the normal rights and duties of a father if the child was registered as legitimate.

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.

Disclaimer :: You and Your Rights
Although we have gone to great lengths to ensure the accuracy of the information contained in this database, it is important to remember that laws, government departments, interest and taxation rates are constantly changing. If you have a particularly difficult problem you are advised to consult a qualified legal authority. The publishers, editors and their representatives cannot accept responsibility for any act or omission arising from consulting the information contained herein.
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General Disclaimer: The content of Legal City does not constitute legal, tax or financial advice, nor does it necessarily reflect the views of our management, staff, shareholders, associates, contributors, authors or suppliers. Even though every endeavour has been made to ensure the accuracy of this information we cannot be held responsible for any errors and/or omissions. By using this web site you agree to accept and abide by our terms and conditions.
This web site and all its content is copyright © 2000-2014, Legal City CC • Web site managed with qPortal Content Management v 4.0.0 • This page loaded on October 26, 2014 at 10:29:27 am, SA Standard Time.