Father's Rights Article 5: The Recognition of Paternity of the Unmarried Father.

If the unmarried father can obtain consent from the biological mother then he may apply for an

amendment to be effected to the registration of birth of the child in terms

of section 11 (4) of the Births and Deaths Registration Act, 1992

(Act 51 of 1992), identifying him as the father of the child.

If however the biological

mother does not consent to an amendment to be effected to the registration of

the birth of the child then court action will be necessary. Please note that

currently, the Children’s Court does not have jurisdiction (the power to

entertain) an application of this type. Therefore the application to court will

only be entertained in the High Court, we say currently as the Children’s Act

is currently being amended to allow the Children’s Court to exercise

jurisdiction. This application removes the need for the biological mother’s

consent to affect the amendment. Once the unmarried father’s paternity is

recognised then guardianship is granted to the unmarried father. In terms of

the Children’s Act, these rights are to:

administer and safeguard the child's property

and property interests;

assist or represent the child in

administrative, contractual, and other legal matters; or

give or refuse any consent required by law in

respect of the child, including:

a.   consent

to the child's marriage;

b.   consent

to the child's adoption;

c.   consent

to the child's departure or removal from the Republic;

d.   consent

to the child's application for a passport; and

e.   consent

to the alienation or encumbrance of any immovable property of the child.

However, unless a competent

court orders otherwise, the consent of all the persons that have guardianship

of a child is necessary in respect of matters set out in 3(a) to (e) above.

Also please note that the

unmarried father of a child who does not have parental responsibilities

and rights in respect of the child in terms of the Children’s Act acquires

full parental responsibilities and rights in respect of the child if at the time of the child's birth, he is living with

the mother in a permanent life-partnership.

This article will conclude our

series on the rights of unmarried fathers. Please note that while the articles

do represent an accurate summary of the applicable laws due to the complexity

involved it is highly advised that an attorney is approached.

In our next article, we shall continue

to discuss aspects of family law commencing with third parties (for example

aunts, uncles, grandparents) being granted rights to minor children.

Related Practice Areas: Father's Rights | Asset Division

If you have questions about your specific situation, contact Nick Elliot for a confidential consultation.