Unmarried parents are a stark reality in our modern society and South African society is no different. Many of these relationships fail and with such failure and separation the arrangements surrounding a minor child born from such a relationship become a serious bone of contention.
The inevitable question(s) surrounding such arrangements arise early after the breakdown of a relationship between unmarried parents, ie. how to go about ensuring the arrangements are in place, whom to approach, what to do regarding maintenance, visitation and encompassing rights towards a minor child, and when to do so.
The first port of call is to ascertain the responsibilities and rights of unmarried fathers. In doing so we consult the Children’s Act, Act 38 of 2005 (hereinafter referred to as “the Children’s Act”). Specifically section 21 of the Children’s Act, which endeavours to resolve the issues surrounding parental responsibilities and rights of unmarried fathers.
Section 21 sets out certain requirements that have to be met by an unmarried father before he is allowed to acquire the same parental responsibilities and rights towards a minor child as the biological mother (whom, acquires these parental responsibilities and rights automatically without having to adhere to specified requirements).
The requirements for an unmarried father to acquire full parental responsibilities and rights towards a minor child are not as straightforward as one may think. The requirements for an unmarried father to automatically acquire parental responsibilities and rights towards a minor child are listed as follows in the Children’s Act:
- “if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or
- if he, regardless of whether he has lived or is living with the mother– i. consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;
- contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period, and
- contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.”
However, it is important to note that the requirements are not cumulative, as was held in the High Court case of GM v KI 2015 (3) SA 62 (GJ), in which matter the High Court stated that an unmarried father can acquire parental responsibilities and rights by contributing to his child’s maintenance, which, in itself, indicated that the court does not consider the requirements to be cumulative. Therefore, it can be argued that if anyone of the requirements are met the unmarried father will automatically acquire full parental responsibilities and rights toward a minor child.
If a dispute should arise between the unmarried parents regarding their parental responsibilities and rights they must be extremely cautious before deciding to approach the Court for the necessary relief sought.
Unmarried parents are usually unaware of section 21(3) of the Children’s Act which governs disputes between them. This section not only requires but makes it compulsory for unmarried parents to first attempt mediation specific to the issues between them, they may not approach the Court as the first resort for resolution. However, this section does not diminish the High Court’s powers as the upper guardian of all minor children, and therefore either party may, if it is in the best interest of a minor child, approach the Court without having engaged in mediation.
An unmarried father may, if it is in the best interest of a minor child, either bring an application to the High Court or approach the Children’s Court in terms of Section 53 of the Children’s Act, especially with regards to vesting his automatically acquired parental responsibilities and rights and/or for access towards his minor child.
Nevertheless, section 21(3) of the Children’s Act compels the unmarried parents to attempt mediation, it follows that from such mediation a parenting plan is usually formulated.
Consequently, sections 33 to 35 of the Children’s Act deal with the specific content of a parenting plan.
The parenting plan may include various and several co-parenting issues in contention between the parties, however, section 33(3) of the Children’s Act briefly mentions the following determinations:
“3. A parenting plan may determine any matter in connection with parental responsibilities and rights, including–
- where and with whom the child is to live;
- the maintenance of the child;
- contact between the child and–
- any of the parties; and
- any other person; and
- the schooling and religious upbringing of the child.”
The parenting plan aims to resolve issues surrounding arrangements for a minor child and meticulously outlines the exercise of the unmarried parents’ co-parental responsibilities and rights.
It is important to point out that section 33(2) echoes section 21(3) of the Children’s Act in that it also discourages parties from approaching the Court as a first resort for their co-parenting issues, yet section 33(2) differs in that it provides as a solution that parties first seek to agree to a parenting plan.
In the event that unmarried parents are either certain or remain sceptical that mediation as envisaged in section 21(3) of the Children’s Act would come to nought, it is a point to remember that before approaching Court, it is advisable to approach a legal representative to draw up a parenting plan as per sections 33 to 35 of the Children’s Act. What such action would achieve is that the draft parenting plan may be proposed to the other parent for their consideration, and amendments and/or negotiations regarding such a draft may be attended to expertly drafted, well-advised and in strict accordance with the law, to avoid any unnecessary litigation and/or issues in future.
Agreeing to a parenting plan is highly advantageous to unmarried fathers, as such agreements will vest their parental responsibilities and rights in a non-litigious manner, which is in the best interest of a minor child.
Where parties have agreed to a parenting plan, they may approach the Court to have such a parenting plan made an Order of Court, which is highly advisable to do for the purpose of the enforcement thereof.