Last updated on Feb 9th, 2021 at 01:04 pm
If you’re an unmarried parent, you’re not alone. According to global statistics, fewer people are getting married nowadays, while in many countries, the divorce rate continues to rise.
Why? Recent Pew Research suggests that younger men and women are choosing to stay single for longer owing to their career choices and the desire to climb the corporate ladder, while others won’t get married unless at least one partner is financially stable and able to provide stability for the family (this is particularly important for men).
However, statistics also show that the number of unmarried couples living together and raising children is on the rise (this number reached 18 million in the US in 2016, which was up 29% since 2007). And in South Africa, there’s a growing trend where around 39% of children are raised by single mothers (where fathers are completely absent), according to the South African Institute of Race Relations.
With the rising costs of living and education in SA, it’s important to know your rights as a parent, regardless of whether you’re raising your child alone, with a partner or a spouse.
We asked two senior legal advisors to answer some key questions and concerns you might have:
If you’re a single parent…
Do you have the same rights as married couples?
David Thomson, senior legal adviser for Sanlam Trust says, “As a single parent, you have all the same obligations as couples in partnerships, which will still apply until your child turns 18. These obligations, as stated in the Children’s Act of 2005, include meeting your child’s entitlement to the equal care and support of both you and your partner. However, these responsibilities can be excluded by the court if one parent is found to be unfit, abusive or damaging to the child,” explains David.
If you’re a single mother, you have:
- The right to the custody of your child
- The right to expect cooperation and respect from your child
- The right to any income that your child might make (later on)
- The right to take legal action against anyone found guilty of unlawfully injuring or harming your child (which includes death)
- Your child’s biological father has equal responsibility for your child under the law, too. These responsibilities include supporting and contributing to the overall wellbeing of your little one, and more.
What happens with maintenance issues?
Failure to pay maintenance in South Africa is a criminal offence that could result in a fine or imprisonment, explains David. If you’re a single mother and you’re struggling to get maintenance from your child’s biological father, you’ll need to approach the maintenance officer at your local magistrate court and hand over the father’s details. He will then be summoned to appear at the maintenance court to explain why he hasn’t met his obligations. Demands for maintenance payments can be made after this.
Just a note: The same rules apply to single fathers who have custody of their children, and who rely on child support from the biological mother. “If you or your partner lie about your income, the court could call your employer to court and request all payroll documentation to examine further. If, at a later stage, you or your partner acquires assets or receives an income, a summons could still be issued against you for the maintenance in arrears,” says David. Also, if either of you pass away, the other parent can put in a claim against the estate.
If you’re in a partnership, but not married…
Do you have equal rights to your child?
Yes, says David. In this case, you both have equal obligations, and you’re both responsible for supporting your child.
- Paying school fees
- Maintenance (for clothes, entertainment, etc.)
- Taking care of any medical expenses
- Whether you’re living under the same roof or not, David believes it’s wise to put an agreement together in writing regarding your child or children, as this will help to avoid any misunderstandings or conflict down the line. “Whatever you agree on, should be in the best interests of your child,” he adds.
What rights does the biological father have?
Cape-Town based family law attorney Juan Smuts from Abrahams & Gross Attorneys says in terms of Section 21 of the Children’s Act of 2005, “An unmarried biological father will only have automatic parental rights if he’s living with the mother in a permanent life partnership and consents to being identified as the father.”
Juan also says that according to Section 18 of the Act, fathers who share the same house with the mother have a right to offer guardianship and care to the child.
The bottom line is, unmarried fathers’ rights depend largely on their relationship with the mother, says Juan. “Fathers don’t have automatic rights to the child, unless they’re in a partnership with the mother,” he adds.
What about your child’s birth name?
According to Section 10 of the Births and Deaths Registration Act of 1992, children born to unmarried parents will receive their mother’s surname.
If you’re divorced…
How do you decide who should take the most responsibility for the kids?
“Normally, when couples get divorced, they get their lawyers to draw up an agreement which sets out exactly who is going to pay for what and where the children will live, etc.” says David.
Very often, this extends beyond your child reaching the age of 18. What happens most of the time is that you both commit to paying maintenance and school fees until your child can support himself.
If you’re just getting divorced, David advises consulting a lawyer and financial adviser to ensure a fair arrangement, with maintenance payments that increase in line with inflation. “The settlement agreement should be made an Order of Court,” he adds.
Juan says that these financial decisions are also dependent on:
- The needs of your child including medical aid, day care or education or any special needs
- The income and needs of the primary caregiver
- The parent’s ability to pay maintenance
- Your child’s lifestyle and standard of living before the divorce or separation
- With regards to a divorce, the court will always rule in favour of your child’s best interests and take this into consideration first.
Juan also says that when it comes to where your child will stay and who will take the primary caregiver role, the court will look at factors such as:
- Who your child bonds with most of the time?
- Who does he go to if there’s a problem or crisis?
- Who cooks the meals in the home?
- Who handles discipline issues?
- Who takes care of most of the responsibilities? This includes things like who stays home when your child is sick, who handles extra murals, etc.
There are many more childcare and financial aspects to consider, which is why divorces can take time to settle.
About the experts
David Thomson is an attorney, having obtained the BA & LLB degrees from the University of KwaZulu Natal in 1984. He’s currently employed by Sanlam Trust in Cape Town as a senior legal adviser, having previously worked for Broker Distribution as a legal consultant in KZN. Read more about David Thomson here.
Juan Smuts is a family law attorney with more than 25 years legal experience. He’s a specialist in the field of family law, divorce and matrimonial law (both international and national). He advises on various matrimonial systems, divorce, separation and other family law matters such as custody disputes, maintenance, and the drafting of antenuptial contracts. Juan also has vast litigation experience having handled matters before the Constitutional Court, Supreme Court of Appeal, High and Magistrate’s Courts. Read more about Juan Smuts here.