Unmarried Fathers and Maintenance Claims: A Legal Perspective
The obligation of parents to provide for their children’s expenses during their upbringing is a fundamental principle enshrined in our legislation. Children have the right to receive financial maintenance and support from their parents, regardless of their parents’ marital status. However, uncertainty frequently arises in cases where a child is born out of wedlock, particularly concerning the maintenance obligations imposed on the unmarried father. This article explores the legal framework governing maintenance claims against unmarried fathers, focusing on their parental rights and responsibilities under South African law.
Legal Presumption of Paternity
In cases where a woman is married, there is a legal presumption that her husband is the biological father of any child born during their marriage. As such, he has a duty to maintain his child or children. This presumption, derived from the Latin phrase "pater est quem nuptiae demonstrant", essentially means that the marriage identifies who the father is. However, this principle may be rebutted should the husband provide proof that he is not the biological father, such as evidence of his absence at the time of conception, impotence, or sterility. Nevertheless, the same principle does not apply to unmarried fathers.
The Children’s Act 38 of 2005 (“the Children’s Act”)
The rights and responsibilities of unmarried fathers are governed by the Children’s Act. The Children’s Act strikes a balance between the rights of alleged fathers to establish paternity and the paramount consideration of the child’s best interests, underscoring its broader commitment to children’s rights and welfare in family law matters. The Children’s Act specifically outlines the acquisition of parental rights and responsibilities, differentiating between married and unmarried fathers. However, what the Children’s Act fails to distinguish between, is the maintenance obligations of married and unmarried fathers.
Section 18 of the Children’s Act delineates the general parental responsibilities and rights to a person who may have full or specific parental rights and responsibilities, which may include caring for the child, maintaining contact, acting as the child’s guardian, and contributing to the child’s maintenance. These responsibilities are shared by both parents, ensuring the child's welfare is adequately provided for.
Section 21 of the Children’s Act – Parental Rights and Responsibilities for Unmarried Fathers
Section 21 of the Children’s Act is particularly significant for unmarried fathers. Under this section, an unmarried biological father may acquire full parental rights and responsibilities, if he meets the specific criteria as set out below:
at the time of the child’s birth, he is living with the mother in a permanent life-partnership;
he consents to being identified as the child’s father or successfully applies to be identified as such under Section 26;
he has made a bona fide (good faith) effort to contribute to the child’s upbringing for a reasonable period; and
he has made a bona fide (good faith) effort to contribute towards expenses related to the maintenance of the child for a reasonable period.
The case of Botha v Dreyer (“the Botha case”) provides a crucial judicial interpretation of Section 21 of the Children’s Act. The court examined whether an unmarried father could automatically acquire parental rights and responsibilities upon establishing paternity. The court held that once paternity is confirmed, the father’s rights and responsibilities are automatically recognised under Section 21 of the Children’s Act, without requiring additional proof that such acquisition is in the child’s best interest. This ruling underscores the automatic nature of these rights upon the establishment of biological paternity. In the Botha case, the court further underscored the significance of DNA testing in resolving paternity disputes with reference to Section 21 of the Children’s Act. The court highlighted that establishing biological truth is in the child's best interests and affirmed the High Court's authority to mandate DNA tests, even if it slightly encroaches on individual privacy rights.
Section 21 of the Children’s Act emphasises the biological connection and acknowledges the significance of the father's involvement in the child's life. By contributing to the child's upbringing and maintenance, the father demonstrates a commitment to the child's welfare, strengthening his claim to parental rights. In terms of maintenance, the acquisition of parental rights and responsibilities for biological unmarried fathers does not impact the duty of the unmarried father to contribute towards the child’s maintenance, as per Section 21(2) of the Children’s Act.
Maintenance Obligations Under the Maintenance Act 99 of 1998 (“the Maintenance Act”)
The Maintenance Act further establishes that all parents, regardless of marital status or the circumstances of the child’s birth, have a duty to support their children. Child maintenance involves a periodic payment to cover the essential needs, including food, shelter, clothing, education, and medical care of children until they are (or reasonably should be) self-supporting. Under the Maintenance Act, a maintenance order may be obtained to enforce the common law duty of parents to support their children. This duty applies equally to children born out of wedlock, whether from a first or subsequent marriage. Thus, all parents are legally required to provide financial support for their children, irrespective of whether they are in a casual relationship or not.
If parents have automatically obtained full parental rights and responsibilities under the Children's Act, they are both accountable for their children unless a court decides otherwise. In cases where a father has little to no contact with his child, he is still required to pay maintenance. Further, in cases where a father chooses not to acquire parental rights and responsibilities, he remains obligated to maintain his biological child.
Addressing Maintenance Claims
Unmarried fathers often challenge maintenance claims to avoid financial responsibility. Nonetheless, Section 36 of the Children’s Act provides that in legal proceedings where it is necessary to establish paternity for a child born out of wedlock, if it is proven that the alleged father had sexual intercourse with the mother during the time the child could have been conceived, he is presumed to be the biological father. This presumption holds unless there is evidence to the contrary that raises reasonable doubt.
The father, however, may dispute this presumption by providing evidence to the contrary, such as the results of a paternity test. In the case of S v L, the court clarified that the phrase, "in the absence of evidence to the contrary which raises reasonable doubt", indicates that should contrary evidence exist, the presumption no longer applies or ceases to operate.
Financial obligations stemming from paternity disputes often generate controversy. The Harlech-Jones v Harlech-Jonescase underscores the necessity of demonstrating a genuine need for maintenance and providing comprehensive financial information. The challenge lies in ensuring that maintenance claims are reasonable and accurately reflect the child's needs and the parents' financial capacities, thereby avoiding both overestimation and underestimation of the required support.
The provisions of the Children’s Act and Maintenance Act laid out above, form a legal framework that ensures that all fathers, regardless of their marital status, fulfil their financial responsibilities towards their children. Both parents are required to contribute to the upbringing of their child, however, such contribution will be dependent on their respective means. By safeguarding the welfare and best interests of the child, the legislation aforementioned upholds the principle that children have the right to receive financial maintenance and support from their parents.
Written by Jade Baldwin
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