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The rights and responsibilities of biological fathers who were not married to the child’s mother at the time of conception or birth can be uncertain.

Take the following scenario as example: Mary has a 5-year-old son called Jack and was living with Jack’s father, Mark for 3 years when Jack was born. Mary and Mark were never married. Mark left their common home when Jack was 2 years old. Over the years, Mark made contact with his son and contributed to some maintenance every now and then. Mary would like to know what rights and responsibilities Mark has towards Jack.
Section 20 of the Children’s Act 38 of 2005 (“the Act”) confers parental responsibilities and rights on married fathers if they are married to the child’s mother or if they were married at either the time of the child’s conception, birth or any time between conception and birth.
In terms of this same act, a father like Mark acquires these rights and responsibilities in the following circumstances:
If at the time of the child’s birth he is living with the mother in a permanent life partnership; or
if he consents to be identified; or
he successfully applies in terms of Section 26 of the Act to be identified as the father; or
he pays damages in terms of customary law; or
if he contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; or
if he has contributed or attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period. [1] Section 21 of the Children’s Act 38 of 2005.

It may be difficult to determine whether two persons are in a permanent life partnership or not. This term lacks a precise definition and has been described as “a stable monogamous relationship where a couple who do not wish to (or are not permitted to) marry, live together and share an intimate relationship” that is akin to marriage. The Constitutional Court has given limited recognition to the relationships labelled as “life partnerships” or “permanent life partnerships”, but no specific meaning has been attached to these terms.[2] Du Bois F, Willie’s Principle of South African Law (2007), 9th ed., p363.

It is important to note that this section applies regardless of whether the child was born before or after the commencement of this Act, and that it does not affect the duty of a father to contribute towards the maintenance of the child. It therefore means that, even if Mark does not see Jack, he still has to contribute to the maintenance[3] Section 21(2) of the Children’s Act 38 of 2005.

If there is a dispute between the biological father and the biological mother of a child with regard to the fulfilment by that father of the conditions set out above, the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. Any party to the mediation may have the outcome of the mediation reviewed by a court.[4] Section 21(3) of the Children’s Act 38 of 2005.

From this article we can see that the only clear responsibility of Mark is that of paying maintenance to support Jack. Due to the fact that the definition of a permanent life partnership is so vague, Mark and Mary should refer this matter to one of the above mentioned mediators to obtain certainty about Mark’s rights towards Jack should they not be able to agree. It is also advisable to agree on a parenting plan and have an agreement signed in this regard to ensure clarity for both Mark and Mary.

If you need advice on any matrimonial issues, please contact ALMO LUBOWSKI of Alcock & Associates.
Contact details: 082 941 6232

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

— with Almo Lubowski.

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