Unmarried Parents and Child Law in South Africa

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Unmarried Parents and Child Law in South Africa

What automatically applies to unmarried mothers and fathers, and how a father who doesn’t automatically qualify can still acquire parental rights

As a general rule, a biological mother, whether married or unmarried, automatically holds full parental responsibilities and rights in respect of her child, subject to the specific exceptions provided for in section 19 of the Children’s Act.

An unmarried father does not acquire these rights automatically merely by being the biological father — but he does acquire them automatically if he meets the requirements of section 21 of the Children’s Act, and can acquire them by agreement or court order if he does not.

The one parental responsibility that applies to an unmarried father regardless of his other rights is the duty to maintain the child.

This article provides general information about South African family law. It does not constitute legal advice and does not predict the outcome of an individual matter.

At a Glance

Question	General position
Does an unmarried mother automatically have parental rights?	Yes — full parental responsibilities and rights, automatically
Does an unmarried father automatically have parental rights?	Not automatically from biological paternity alone — but yes, automatically, if he meets the section 21 requirements
Does an unmarried father always owe maintenance?	Yes. This applies regardless of whether he holds any other parental responsibilities and rights
What surname does the child get?	The child may be registered under the surname of either parent or under both parents’ surnames as a double-barrelled surname, subject to the applicable birth-registration requirements
Can an unmarried father who doesn’t qualify under section 21 still get rights?	Yes — by agreement with the mother, or by application to court
Is “custody” still the correct legal term?	No. The Children’s Act uses care, contact, guardianship and maintenance

The Four Parental Responsibilities and Rights

Section 18(2) of the Children’s Act 38 of 2005 identifies four distinct parental responsibilities and rights:

care — the child’s day-to-day physical and emotional needs;

contact — maintaining a personal relationship with the child;

guardianship — the authority to make major decisions about the child’s life, including consent to matters such as marriage, adoption, a passport application, or departure from South Africa; and

maintenance — the duty to contribute financially to the child’s upbringing.

The Children’s Act governs these responsibilities and rights for every child, regardless of whether the child’s parents were married to each other. Older terms such as “custody” and “access” are not the language of the current Act — this article uses care and contact throughout.

For the fuller statutory framework, see MVA’s guide to Parental Responsibilities, Rights and Guardianship.

Unmarried Mothers

Unmarried Fathers: Not Automatic From Paternity Alone

An unmarried father does not acquire full parental responsibilities and rights merely because he is the child’s biological father.

That does not mean he is excluded. Section 21 of the Children’s Act sets out two distinct routes by which an unmarried biological father acquires full parental responsibilities and rights automatically, without needing to go to court:

He was living with the mother in a permanent life partnership at the time of the child’s birth; or
Regardless of whether he lived with the mother, he satisfies both of the following:

he consents to be identified, or successfully applies to be identified, as the child’s father (or pays damages in terms of customary law); and
he has contributed, or attempted in good faith to contribute, to the child’s upbringing and to expenses connected with the child’s maintenance, for a reasonable period.

The second route requires both elements together. Identifying as the father is not enough on its own without a genuine contribution to the child’s upbringing and maintenance, and a financial contribution alone is not enough without also being identified as the father.

In Botha v Dreyer (now Möller) (4421/08) [2008] ZAGPHC 395, the High Court confirmed that an unmarried father who proves paternity and satisfies the section 21 requirements acquires full parental responsibilities and rights automatically — the court does not need to make a separate finding that this is in the child’s best interests at that threshold stage.

The court also confirmed its power to order DNA testing to resolve a paternity dispute where necessary.

Where there is a genuine dispute about whether an unmarried father has satisfied the section 21 requirements, section 21(3) requires the matter to be referred to a Family Advocate, social worker, or other suitably qualified person for mediation before it proceeds further.

If an Unmarried Father Doesn’t Meet Section 21

An unmarried father who doesn’t satisfy either section 21 route is not permanently excluded. He can still acquire parental responsibilities and rights through:

A parental responsibilities and rights agreement with the mother. This must be in the prescribed form and takes effect once registered with the Family Advocate or made an order of court.

An application to court. An application for care or contact may be brought in the Children’s Court where the statutory requirements are met. Since 8 November 2023, section 24(1) of the Children’s Act also permits an application for guardianship to be brought in either the High Court or a children’s court. Section 45 confirms concurrent jurisdiction over guardianship. The High Court remains the upper guardian of all children, but it is no longer the only court with jurisdiction to grant guardianship under section 24.

Where the court is deciding such an application, the child’s best interests remain the paramount consideration, alongside factors such as the father’s relationship with the child, his commitment to the child’s upbringing, and the extent of his involvement and financial contribution.

The Duty to Maintain the Child Is Separate

An unmarried father’s duty to maintain the child applies regardless of whether he holds care, contact, or guardianship.

An unmarried biological father’s duty to contribute towards the maintenance of his child exists independently of whether he has acquired parental responsibilities and rights under section 21, by agreement or by court order.

Maintenance and contact are separate legal issues. An unmarried father’s duty to contribute to the child’s maintenance does not fall away merely because contact is limited or denied.

Conversely, where the father holds contact rights under the Children’s Act, an agreement or a court order, non-payment of maintenance does not by itself extinguish those contact rights.

The Child’s Surname

Section 9(2) of the Births and Deaths Registration Act permits a child’s birth to be registered under the surname of either parent or under both parents’ surnames joined as a double-barrelled surname.

In Centre for Child Law v Director-General: Department of Home Affairs [2021] ZACC 31, the Constitutional Court declared section 10 unconstitutional and removed the restriction that had treated children of unmarried parents differently for purposes of birth registration.

The parents’ marital status therefore does not, by itself, determine which parent’s surname the child must bear.

Getting Advice

The rights and responsibilities of unmarried parents are often disputed, particularly where an unmarried father’s section 21 status is unclear or contested.

Martin Vermaak Attorneys Inc. advises on South African family-law matters involving unmarried parents, parental responsibilities and rights, guardianship, care and contact, parenting plans, and related court applications.

Where there is uncertainty about an unmarried father’s legal status, or a dispute about care, contact, guardianship, or maintenance, obtaining advice early can help identify what rights already exist and what process is available to establish or regulate them.

For related guidance, see MVA’s articles on Child Relocation in South Africa, When a Parent Refuses Passport Consent, and Parental Responsibilities, Rights and Guardianship.

Author: Martin Vermaak, B.Proc, LLB

Attorney of the High Court of South Africa | Director, Martin Vermaak Attorneys | Over 20 years’ experience in divorce and family law

Disclaimer

This information has been prepared for general educational purposes only and is not intended to constitute legal, financial, tax or other professional advice. South African family law is fact-specific, and the applicable legal position may depend on the circumstances of the individual matter. Readers should obtain independent professional advice appropriate to their circumstances before making legal, financial or other decisions.

– Parental Responsibilities, Rights and Guardianship

– Understanding the Children’s Court System in South Africa

– The Family Advocate in South Africa

– Primary Residence and Contact With Children in South Africa

– Co-Parenting After Separation in South Africa