The Rights of an Unmarried Father

The rights of an unmarried father is a topic that is rarely highlighted or talked about in day-to-day conversations. And so it is often unclear to a man who is not married to the mother of his children as to what his rights truly are. In this article we highlight what paternity is and what you can do if you are being denied your rights as a father.

“We have been together for some time now. She recently fell pregnant and had a child, however she claims and is adamant that I am not the father of the child. I find this hard to believe though. Please help, what can I do? I know this is my child and I want to be recognized as the biological father of the child so that I can play my part in the child’s life, but she is point blank refusing me this opportunity.

What is Paternity and what is the presumption around it in South Africa?  

Paternity relates to the quality or state of being a father.   Section 36 of the Children’s Act 38 of 2005 states that “if in any legal proceedings in which it is necessary to prove that a particular person is the father of a child born out of wedlock it is proved that that person had sexual intercourse with the mother of the child at any time when that child could have been conceived, that person is,  in the absence of evidence to the contrary which raises reasonable doubt, presumed to be the biological father of the child”  In the 1992 case of S v L, the court held that the phrase “in the absence of evidence to the contrary which raises reasonable doubt” means that whenever there is evidence to the contrary, the presumption does not operate or ceases to operate. 

What can an unmarried man do in the event where he claims to be the biological father of a child? 

Section 26 of the Children’s Act 38 of 2005 deals with persons claiming paternity. In terms of this section, a person who is not married to the mother of the child and who is or claims to be the biological father of the child may do one of two things:  

  1. 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 51 of 1992, identifying him as the father of the child, if the mother consents to such amendment 

  OR    

  1. Apply to a court for an order confirming his paternity of the child, if the mother:
  • Refuses to consent to such amendment;  
  • Is incompetent to give consent due to mental illness;  
  • Cannot be located; and  
  • Or is deceased. 

  Also read about your right as a grandparent.

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