Our expert says:
Family law expert
In terms of the Children’s Act an unmarried father can acquire parental rights and responsibilities automatically (without needing to go to court) if he complies with conditions in section 21.
In the light of the Children’s Act an unmarried father qualify automatically for parental responsibilities and rights.In order for an unmarried father to automatically acquire parental rights and responsibilities under section 21 the following requirements must be met:
1. He must be or have been living in a permanent life partnership with the child’s mother at the time the child is born; or
2. If he is not living or has never lived with the mother in a life partnership then in order for him to acquire automatic parental rights and responsibilities;
(i) he must consent to being identified as the child’s father or apply to be so identified or he must pay damages in terms of customary law; and
(ii) he must contribute or must have attempted to contribute to the child’s upbringing for a reasonable period; and
(iii) he must contribute or must have attempted to contribute to expenses in connection with the maintenance of the child for a reasonable period.
Consequences of compliance or non-compliance with conditions in section 21
If the child’s mother disputes allegations that the requirements have been satisfied by the father then the matter must be referred to one of the following service providers for mediation, namely, the family advocate, social worker, social service professional or other suitably qualified person. The courts cannot be approached before such mediation has taken place. If mediation fails or is not possible then one of the parties can approach the High Court for an appropriate order.
If there is no dispute that the father complies with the conditions set out in section 21 then he and the mother will be co-holders of parental rights and responsibilities. In such a case the father would be able to exercise his parental rights and responsibilities sufficiently if he and the mother draw up a parenting plan in terms of section 33 setting out how they would exercise their respective responsibilities and rights in respect of the child.
I suggest that you get a maintenance order in place so that he pays monthly maintenance.
B.Proc; AD Dip L Law
Family Law Attorney
Abrahams and Gross Inc.
A:1st Floor, 56 Shortmarket Street, Cape Town, 8000
O: +27 (0) 21 422 1323
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