CHILD MAINTENANCE AND FREEDOM OF TESTATION

Is a testator entitled to disinherit a child and if so, will the child have a claim for maintenance against the estate?

What is freedom of testation?

Freedom of testation is the liberty of a testator to choose how to bequeath his/her estate, and govern how their property is transmitted after his/her death. The law of succession then, is at least in part concerned with the preservation of a testator’s wishes, even if it additionally serves a social function related to the family and economic structures of society. In principle, South Africa propagates total freedom of testation.

The general approach in South African law is that agreements or clauses which attempt to limit freedom of testation are not enforceable. Furthermore, once the testator’s wishes have been established, a court is ordinarily bound to give effect to these wishes.

Are their restrictions?

However, freedom of testation has never been unfettered. Both the common law and statutes, such as the Maintenance of Surviving Spouses Act 27 of 1990, impose restrictions on the testator. Bequests which are manifestly illegal or contra bonos mores (against good morals) will be regarded as invalid. Spouses and children may also be disinherited in terms of the will but they may still have a legitimate claim for maintenance against a testator’s estate which cannot be disregarded.

Disinheritance

There is a presumption against disinheritance, and courts will usually prefer a softer construction of a testator’s will in this respect. This is based on an assumption that a parent is not likely to disinherit a child. However, it is important to note that if it is explicit or clear in a testator’s will that a child is disinherited, then this will not constitute an impermissible exercise of freedom of testation; rather, a testator is given the liberty to lawfully do so.

South Africa gives fairly broad freedom to testators. Testators can generally dispose of their estates as they desire, subject only to certain restrictions mentioned above. Testators are also not required to give reasons for their decisions in this regard, and are not accountable to their families for testamentary choices.

Parental duty and maintenance

The parental duty to maintain children will pass to the estate upon death, as confirmed in Carelse v Estate De Vries (1906). The minor child’s claim for maintenance is endorsed as settled law and a common law restriction on freedom of testation.

It should be noted that the child’s claim for maintenance and education is not to be confused with a legitimate portion as it does not entitle a minor to a set portion of the estate or, put differently, does not presumptively limit the testator’s ability to divide her estate as she or he desires. As such a testator could potentially disinherit a child without this impacting the common law claim the child will have against the estate.

Conclusion

Currently, South African law provides for the surviving spouse to exercise a claim for maintenance against the deceased’s estate. The parental (and spousal) duty does not merely extinguish upon death. The provision of maintenance for children gives effect to children’s rights as provided for by the Constitution, and affording this maintenance claim to protect dependants is wholly justifiable. This does not however entail that children should be entitled to a legitimate portion or forced heirship generally, as this would constitute an overly extensive constriction on freedom of testation.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

ADOPTING A CHILD IN SOUTH AFRICA

Adoption is the legal act of permanently placing a child with a parent or parents other than the child’s birth mother or father.

A legal adoption order ends the parental rights of the birth mother and father and hands over the parental rights and responsibilities to the adoptive parents.

There are 4 phases in the adoption process:

  1. Application
  • In South Africa, the only way in which you can legally adopt a child is by working through an accredited adoption agency, or with the assistance of an adoption social worker, functioning within the statutory accredited adoption system.
  • When working through an adoption agency, the process usually starts with the prospective adoptive parents submitting an application to the agency.
  • Each agency has its own set of requirements – it’s a good idea to phone the particular agency to get their set of criteria before you actually apply in writing.
  1. Screening process
  • All prospective adoptive parents are required to undergo a screening and preparation process. This normally involves:
  • orientation meetings,
  • interviews with a social worker,
  • full medical examinations,
  • marriage and psychological assessments,
  • home visits, and
  • police clearance and the checking of references.
  • The screening process allows social workers to get to know prospective adopters as a family, their motivation to adopt and their ability to offer a child a warm, loving and stable home.
  1. Waiting list
  • Once the screening process is complete, applicants are placed on a waiting list for a child. Applicants have their own ideas and wishes about the child they wish to adopt.
  • They can decide about the age and sex of the baby or child they would like to adopt, and adoption agencies will try to meet those personal expectations.
  1. Placement
  • The official placement of the child with the adoptive parents is a legal process, carried out through the Children’s Court.
  • Once the child has been with the new parents for a period of time, and the social worker has assessed the adoption to be in the best interests of the child, the adoption is finalised through the Children’s Court.
  • The child then becomes the legal child of the adoptive parents as if the child was born to them and has all the same rights as a biological child.

An adopted child is regarded as the biological child of the adoptive parent/s and all parental rights and responsibilities his/her biological parent/s or previous legal guardian/s had will be terminated. The adoptive child takes the surname of the adoptive parent/s (unless the Children’s Court states otherwise). An adoption will not affect the adoptive child’s rights to property s/he obtained before the adoption.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

AN EX-SPOUSE REFUSING TO PAY MAINTENANCE?

If a couple has gotten divorced and they have a child, then it’s the responsibility of both parents to support the child. The duty to pay maintenance cannot be avoided, regardless of either parents’ situation. If one parent refuses to pay maintenance, then the other parent can go to a court and make a claim. Being a single parent doesn’t mean being the only one to contribute to maintenance.

What should I do about it?

To deal with a spouse who refuses to pay maintenance you would first need to inform the maintenance officer. The maintenance officer can apply to the court for:

  1. A warrant of execution;
  2. An attachment order against the defaulter’s salary;
  3. An order to attach any debts; and
  4. A criminal prosecution.

Does the non-paying parent have a defence?

The only defence that a parent could have for not paying maintenance is having a lack of income. However, if the parent is unwilling to work, such as laziness, then this will not count as a defence. Failure to pay maintenance is taken very serious, guilty parents won’t get much sympathy from the court or others. If the parent is capable of working, then they will be expected to pay maintenance.

But I can’t find my ex-spouse?

Non-paying parents may think that they’re being clever by changing their address and not notifying the court. This is considered a criminal offence, and will result in punishment. Fortunately, it’s not the responsibility of the single parent to find anyone. A maintenance investigator will track down and find a non-paying parent.

How to claim maintenance

If you want someone to pay maintenance or believe that they are not paying the proper amount, then you can follow these steps at your local magistrate’s court. Remember to go the court in the district where you live.

  1. Go to the court and complete the form “Application for a maintenance order (J101)”.
  2. Also submit proof of your monthly income and expenses.
  3. A date will be set on which you and the respondent (the person whom you wish to pay maintenance) must go to the court.
  4. A maintenance officer and an investigator will investigate your claim and look into your circumstances.
  5. The court will serve a summons on the respondent.
  6. The respondent then has to either agree to pay the maintenance, or challenge the matter in court.

If found liable to pay maintenance

If the court finds someone liable for paying maintenance, it will make an order for the amount of maintenance to be paid. The court will also determine when and how the payments must be made. There are several ways the payments could be made. The court can order that the maintenance be paid at the local magistrate’s office or that the amount to be paid into the bank account chosen by the person claiming. The payments could also just be made directing to them. According to the new Maintenance Act (1998), an employer can deduct payments from an employee’s salary, if they’re liable for paying maintenance.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

REGISTERING DEATHS AND DEATH CERTIFICATE REQUIREMENTS IN SOUTH AFRICA

Many South African citizens do not know the correct procedures to follow in order to register a death, or how to obtain a death certificate and by whom, until it is too late. Coming to terms with a death is difficult enough without having to enquire about the legal processes that are necessary in the circumstances in order to proceed with funeral arrangements and other family affairs. The Births and Deaths Registration Act 51 of 1992 outlines the simple requirements and procedures to be followed upon the death of a South African citizen.

The Births and Deaths Registration Act no. 51 of 1992 requires that a person’s death must be reported to any one of the following people authorised by The Department of Home Affairs. Specific officers at the Department of Home Affairs, South African Police Service members, South African Missions, Embassy’s or Consulates where the death occurred abroad or funeral undertakers that have been appointed and are recognised by law.

A Notification of Death or Still Birth Form (Form BI-1663) must be completed when reporting a death. This form, along with all other forms that may be necessary are available from all Home Affairs offices. The following people have to complete different sections of this form in order for it to be submitted: the person reporting the death, the medical practitioner or traditional healer involved in the declaration of the death, and a Home Affairs official or a member of the Police service if a Home Affairs official is not available.

A Death Report (Form BI-1680) will be issued after a death has been registered with one of the relevant department officials. Only someone whom the Department of Home Affairs has authorised to do so can issue this report and this includes traditional leaders, members of the SA Police Services and authorised undertakers.

These designated people may also issue burial orders. No burial may take place unless authorised by way of a burial order (Form BI-14).

Deaths of South African citizens and South African permanent residence permit holders that occur outside South Africa must be reported to the nearest South African embassy or mission abroad. The country in which the death occurs must issue a death certificate and a certified copy of the death certificate must be submitted to the South African embassy or mission when reporting a death. If the deceased is to be buried in South Africa, the embassy or mission will assist with the paperwork and arrangements with regards to transportation of the body to South Africa.

The Department of Home Affairs will issue a Death Certificate on receipt of the notification of death form BI-1663 and the Death Report form BI-1680. Applications for a Death Certificate must be lodged at any office of the Department of Home Affairs or at any South African embassy, mission or consulate if the death occurs abroad. An abridged death certificate will be issued free of charge on the same day of registration of death. An unabridged death certificate can be obtained by completing Form

BI-132 and paying the required fee.

If a person has been recorded, mistakenly or fraudulently, as dead in the National Population Register, (i.e. they are still alive); this must be reported as soon as possible to the nearest Department of Home Affairs office for urgent investigation and corrective action.

Chapter 3 (Section 14 to 22) of the Births and Death’s Registration Act regulates all matters pertaining to the Registrations of Deaths in South Africa and regulations on how to obtain a Death Certificate. The Act provides for the different procedures to be followed when a death is due to natural causes, stillbirth or other methods. This process is simple to follow and the appointed officials at Home Affairs Departments are fully equipped to process registrations and to answer any questions you may have.

Reference List:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted. (E&OE)

RIGHTS AND RESPONSIBILITIES OF UNMARRIED FATHERS

The rights and responsibilities of biological fathers who were not married to the child’s mother at the time of conception or birth can be uncertain. In this article we will discuss when a biological father obtains rights and responsibilities towards their child(ren).

Alissa has a 7-year-old son called Jessie. Alissa had been living with her boyfriend, Mike, for 2 years when Jessie was born. Alissa and Mike were never married and Mike left their common home when Jessie was only 1 year old. Mike makes contact with Jessie and contributes some small amounts towards his maintenance every few months. Alissa would like to know what rights and responsibilities Mike has towards Jessie.

Section 20 of the Children’s Act (“the Act”) confers parental responsibilities and rights on married fathers if they are married to the child’s mother or if they were married at either the time of the child’s conception, birth or any time between conception and birth.

The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of Section 20 of the Act can acquire these responsibilities and rights if one of the following conditions are fulfilled:

  • at the time of the child’s birth he is living with the mother in a permanent life partnership; or
  • if he consents to be identified; or
  • he successfully applies in terms of Section 26 of the Act to be identified as the father; or
  • he pays damages in terms of customary law; or
  • if he contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; or
  • if he has contributed or attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.[1]

It may be difficult to determine whether two persons are in a permanent life partnership or not. This term lacks a precise definition and has been described as “a stable monogamous relationship where a couple who do not wish to (or are not permitted to) marry, live together and share an intimate relationship” that is akin to marriage. The Constitutional Court has given limited recognition to the relationships labelled as “life partnerships” or “permanent life partnerships”, but no specific meaning has been attached to these terms.[2]

It is important to note that this section applies regardless of whether the child was born before or after the commencement of this Act, and that it does not affect the duty of a father to contribute towards the maintenance of the child.[3]

If there is a dispute between the biological father and the biological mother of a child with regard to the fulfillment by that father of the conditions set out above, the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. Any party to the mediation may have the outcome of the mediation reviewed by a court.[4]

From this article we can see that the only clear responsibility of Mike is that of paying maintenance to support Jessie. Due to the fact that the definition of a permanent life partnership is so vague, Mike and Alissa should refer this matter to one of the abovementioned mediators to obtain certainty about Mike’s rights and responsibilities towards Jessie.

References:

  • The Children’s Act 38 of 2005
  • Du Bois F, Willie’s Principle of South African Law (2007), 9th ed.

[1] Section 21 of the Children’s Act 38 of 2005.

[2] Du Bois F, Willie’s Principle of South African Law (2007), 9th ed., p363.

[3] Section 21(2) of the Children’s Act 38 of 2005.

[4] Section 21(3) of the Children’s Act 38 of 2005.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted. (E&OE)

DIFFERENCES BETWEEN THE DOMESTIC VIOLENCE ACT AND THE HARASSMENT ACT

There are people who suffer emotional and physical abuse on a daily basis but are not quite sure what they can do to prevent it. There are two options available to them. They can either apply for a Protection Order or apply for a Harassment Order. However, many people do not know the difference between the two and which Order would suit their situation.

A Protection Order is described as being a form of court order that requires a party to do or to refrain from doing certain acts. These orders flow from the court’s injunction power to grant equitable remedies in these situations. The following is required to be present when applying for a Protection Order:

  • Needs to show a pattern of abuse.
  • It has to be a form of domestic violence which includes:
      • Physical violence
      • Sexual violence
      • Financial violence
      • Emotional/verbal violence
  • The violence needs to be directed at the person who wants to make the application.

A Protection Order forms part of the Domestic Violence Act. This means that the abuse needs to be between persons that live in the same house, like brother and sister, or mother and father, etc. An application is made for a Protection Order and thereafter a return date is set. At the return date the Applicant can change their mind and ask that the order be removed. If not, the Order is granted, and it is binding for life. If the Respondent breaches the Protection Order, he/she may receive up to 5 years imprisonment. If the Applicant applies for a Protection Order under false pretences the Applicant may receive up to 2 years imprisonment.

The application for a Protection Order is an ex-parte application, which means that the application can be made without having the Respondent at Court. This can cause problems in the instance where the Respondent is innocent, but does not have a chance to defend himself/herself.

If you’ve been the victim of abusive or threatening behaviour by someone other than a person living with you, or with whom you have a domestic relationship, it may be harassment. There are different things you can do if you’re being harassed, such as applying for a Harassment Order. The following is important to know about Harassment Orders:

  • No pattern is needed, and a first offence can be sufficient for a Harassment Order.
  • No relationship is required, and it can be against someone you don’t even know.
  • No violence is required.
  • Harassment includes: following, messaging, unwanted packages, letters, psychological harm, physical harm, financial harm, etc.

If you decide to apply for a Harassment Order without knowing who it is against, the Court has the power to order a police official to investigate the matter. The application for a Harassment Order takes place in open court, which means that it is not private, which can sometimes prevent victims from making the application. Once a Harassment Order is granted, it is binding for 5 years. If the Applicant wants to withdraw the Order, the Court must be satisfied that the conditions have changed. Breach of a Harassment Order can result in 5 years imprisonment, which is the same punishment for Applicants who make the application under false pretences.

It is important to know that there are remedies available to victims who are in abusive relationships. Whether it is emotional, physical or financial abuse by someone you know or stalking and harassment by someone you don’t know, it is time to take a stand against abuse.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

A PROMISE TO MARRY

In this article the legal consequences of breaking off an engagement will be discussed. Is it a contract, and if it is, can you institute a claim for damages due to a breach of this contract?

In order to enter into a valid engagement to be married the following requirements must be met:

  • Both parties must have the capacity to act, which generally means that parties must be older than 18 years or if they are minors, that they have the necessary consent from their guardians.
  • Both parties must voluntarily consent to the engagement. A material mistake, such as the identity of either of the parties, will render the engagement void. There must also be no misrepresentations made by either of the parties; in other words, where it would have resulted in the contract not being concluded, had the other party known the truth.
  • Both parties must be permitted by law to marry each other. For example, you may only be engaged to one party, unless a polygamous engagement applies under African Customary Law.
  • One may not marry a sibling.

It is important to note that there is no law in South Africa that requires an engagement before marriage.

Once a date for the marriage has been determined, there is a reciprocal duty to marry on that date, unless the date is changed by mutual agreement. Further, if no date has been determined, it is presumed that the marriage will take place within a reasonable time. Nevertheless, either of the parties may terminate the engagement, which may or may not attract a claim for damages or return of gifts.

An engagement can be terminated in the following ways:

  • Marriage
  • Death of either parties
  • Mutual agreement
  • Withdrawal of parental consent
  • Breach of promise
  • Termination by one party that is justified and based on sound reasons

It is important to establish whether there is a just cause for cancellation. If there is, the engagement may be validly terminated. A reason such as sterility or criminal activity, if it was only brought to the attention of the other party after agreeing to marry, may provide enough grounds to break off the engagement. If both parties agree to terminate the engagement, all gifts given in anticipation of the marriage, including the engagement ring, must be returned.

If one party breaches the promise to marry without justifiable reasons, the innocent party can, according to our law, institute a claim for damages, provided that the losses were within the contemplation of the parties. The innocent party can claim expenses incurred in anticipation of the wedding, thus placing the innocent party in the financial position he or she would have been had the engagement never been entered into. Further, the innocent party may keep or claim back the engagement ring as part of costs incurred.

In the case of Van Jaarsveld v Bridges, the court decided that a party cannot successfully institute a claim for prospective losses on the basis of a breach of promise to marry, because an engagement is not an ordinary contract in the context of contractual damages and should therefore not be placed on a rigid contractual footing. This means that a party may not institute a claim for damages placing him or her in the position he would have been had they gone through with the marriage. Previous court judgements indicate that compensation will be awarded at the discretion of the court and that each case must be evaluated on the basis of its individual circumstances.

In conclusion, it is important to note that a promise to marry is an agreement which attracts legal consequences; therefore one should not be hasty when deciding to ask the big question.

Bibliography:

Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA).

Cloete v Maritz 2013 (5) SA448 (WCC).

Bull v Taylor 1965 (4) SA 29 (A).

Georgina Guedes, 23 October 2013, Mail and Guardian, “Five fallacies about engagement rings”.

A Guide to Divorce and Separation in South Africa, “Engagement and the Law”.

Ronald & Bobroff, “The engagement”.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

FREEDOM OF TESTATION AND MAINTENANCE CLAIMS

Is a testator entitled to disinherit a child and if so, will the child have a claim for maintenance against the estate?

Freedom of testation is the liberty of a testator to choose how to bequeath his/her estate, and govern how his/her property is transmitted after his/her death. The law of succession then, is at least in part concerned with the preservation of a testator’s wishes, even if it additionally serves a social function related to the family and economic structures of society. In principle South Africa propagates total freedom of testation.

The general approach in South African law is that agreements or clauses which attempt to limit freedom of testation are not enforceable. Further, once the testator’s wishes have been ascertained, a court is ordinarily bound to give effect to these wishes. Our baseline is allowing for much liberty and autonomy in the law of succession.

However, freedom of testation has never been unfettered. Both the common law and statutes, such as the Maintenance of Surviving Spouses Act 27 of 1990, impose restrictions on the testator. Bequests which are manifestly illegal or contra bonos mores (against good morals) will be regarded as invalid. Further, spouses and children may be disinherited in terms of the will but they may still have a legitimate claim for maintenance against a testator’s estate which cannot be disregarded.

There is furthermore a presumption against disinheritance, and courts will usually prefer a softer construction of a testator’s will in this respect. This is based on an assumption that a parent is not likely to disinherit a child. However, it is important to note that if it is explicit or clear in a testator’s will that a child is disinherited, then this will not constitute an impermissible exercise of freedom of testation; rather, a testator is given the liberty to lawfully do so.

South Africa gives fairly broad freedom to testators. Testators can generally dispose of their estates as they desire, subject only to certain restrictions mentioned above. Further, testators are not required to give reasons for their decisions in this regard, and are not accountable to their families for testamentary choices.

Nonetheless, the parental duty to maintain children will pass to the estate upon death, as confirmed in Carelse v Estate De Vries (1906) 23 SC 532. The minor child’s claim for maintenance is endorsed as settled law and a common law restriction on freedom of testation.

It should be noted that the child’s claim for maintenance and education is not to be confused with a legitimate portion as it does not entitle a minor to a set portion of the estate or, put differently, does not presumptively limit the testator’s ability to divide her estate as she or he desires. As such a testator could potentially disinherit a child without this impacting the common law claim the child will have against the estate.

Currently, South African law also provides for the surviving spouse to exercise a claim for maintenance against the deceased’s estate. The parental (and spousal) duty then does not merely extinguish upon death. The provision of maintenance for children gives effect to children’s rights as provided for by the Constitution, and affording this maintenance claim to protect dependants is wholly justifiable. This does not however entail that children should be entitled to a legitimate portion or forced heirship generally, as this would constitute an overly extensive constriction on freedom of testation.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

MAINTENANCE: NOT ONLY FOR CHILDREN

When the word “maintenance” is mentioned, many people think of women claiming maintenance for minor children, or alternatively, women claiming maintenance from their ex-husbands. However, in this article we will deal with parents claiming maintenance from their adult children.

Mike Larry received a summons from the Maintenance Court to appear three weeks later for a maintenance matter, however Mike had no children or wife and was quite confused, thinking that perhaps the Court had made a mistake. Mike attended the Maintenance Court in order to enquire whether there had been a mishap in the documentation. However, what Mike found out made his heart sink, and soon his bank account, too.

Mike’s father, Jermaine, had made an application at the Maintenance Court for maintenance from Mike as he had no job and therefore no income. Mike asked his lawyer whether this was even possible and the answer was affirmative.

According to the Maintenance Act 99 of 1998, parents and children have a reciprocal duty of support. A child has a duty to support his/her parents and grandparents, but always subject to the rule that support must be claimed from one’s nearest relatives first. The basis of a child’s duty to support their parents is the sense of dutifulness or filial piety (relating to or due from a son or daughter). In certain circumstances even minor children may have to support their parents. As always, the criteria which must be present is a need on the part of the person to be maintained, and the ability to support on the part of the person from whom support is claimed. A parent who claims support from a child must prove his or her need and the child’s ability to support the parent. As mentioned above, a more stringent criterion of need is applied to parents than to children; indigence on the part of the parent is stated to be a requirement.

Our authorities are not entirely clear on this point. In Oosthuizen v Stanley the court spoke of “the quality and condition of the persons to be supported”. In the same case it was pointed out that where a parent must be supported it is not only the parent’s own needs but also those of the parent’s dependents which must be considered. In Van Vuuren v Sam Rabie, the Judge referred to the same criterion but stressed that the support of parents must be confined to the basic needs which are food, clothing, shelter, medicine and care in times of illness. Relying on the case of Surdus v Surdus, the Judge said that, in assessing the quality and condition of life of the person to be supported, it is primarily his present, not his past situation which is considered, but that in assessing these the Judge should exercise his discretion. For instance, a previously wealthy parent who has fallen on hard times should not be compelled to eat peasants’ food. It has been argued that the criterion of need should not be so narrowly interpreted here as to destroy the whole concept of a reciprocal obligation.

However, the following can also be considered when a parent makes an application for maintenance from his/her child:

  1. Siblings;
  2. Extra income; and
  3. Quality of living.

In terms of the common law an extramarital child has a duty to support his/her mother, but whether or not he/she must support his/her father has yet to be decided. It can, however, be argued that an extramarital child would be liable to maintain his/her father in terms of Section 16 of the Children’s Act 38 of 2005.

In conclusion, if you feel you are being unfairly targeted for a maintenance claim, be sure to consult with your attorneys so they can inform you of your rights and responsibilities.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

RIGHTS AND RESPONSIBILITIES OF UNMARRIED FATHERS

The rights and responsibilities of biological fathers who were not married to the child’s mother at the time of conception or birth can be uncertain. In this article we will discuss when a biological father obtains rights and responsibilities towards their child(ren).

Alissa has a 7-year-old son called Jessie. Alissa had been living with her boyfriend, Mike, for 2 years when Jessie was born. Alissa and Mike were never married and Mike left their common home when Jessie was only 1 year old. Mike makes contact with Jessie and contributes some small amounts towards his maintenance every few months. Alissa would like to know what rights and responsibilities Mike has towards Jessie.

Section 20 of the Children’s Act (“the Act”) confers parental responsibilities and rights on married fathers if they are married to the child’s mother or if they were married at either the time of the child’s conception, birth or any time between conception and birth.

The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of Section 20 of the Act can acquire these responsibilities and rights if one of the following conditions are fulfilled:

  • at the time of the child’s birth he is living with the mother in a permanent life partnership; or
  • if he consents to be identified; or
  • he successfully applies in terms of Section 26 of the Act to be identified as the father; or
  • he pays damages in terms of customary law; or
  • if he contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; or
  • if he has contributed or attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.[1]

It may be difficult to determine whether two persons are in a permanent life partnership or not. This term lacks a precise definition and has been described as “a stable monogamous relationship where a couple who do not wish to (or are not permitted to) marry, live together and share an intimate relationship” that is akin to marriage. The Constitutional Court has given limited recognition to the relationships labelled as “life partnerships” or “permanent life partnerships”, but no specific meaning has been attached to these terms.[2]

It is important to note that this section applies regardless of whether the child was born before or after the commencement of this Act, and that it does not affect the duty of a father to contribute towards the maintenance of the child.[3]

If there is a dispute between the biological father and the biological mother of a child with regard to the fulfillment by that father of the conditions set out above, the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. Any party to the mediation may have the outcome of the mediation reviewed by a court.[4]

From this article we can see that the only clear responsibility of Mike is that of paying maintenance to support Jessie. Due to the fact that the definition of a permanent life partnership is so vague, Mike and Alissa should refer this matter to one of the abovementioned mediators to obtain certainty about Mike’s rights and responsibilities towards Jessie.

References:

  • The Children’s Act 38 of 2005
  • Du Bois F, Willie’s Principle of South African Law (2007), 9th ed.

[1] Section 21 of the Children’s Act 38 of 2005.
[2] Du Bois F, Willie’s Principle of South African Law (2007), 9th ed., p363.
[3] Section 21(2) of the Children’s Act 38 of 2005.
[4] Section 21(3) of the Children’s Act 38 of 2005.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.