What Are The Rights Of A Father Not Married

It is true that we live in an era where many parents are not married, yet are co-habiting. It’s most certainly not uncommon, and for various reasons. But if you are unmarried and have a child/children it is important to know your rights, according to the South Africa’s Children’s Act. In particular where you and your baby’s father stand.

A child born our of wedlock means a child whose natural parents were not married to each other at the time of such child’s conception or at any time thereafter. What rights do biological father’s have?


  • A court may on application by the natural father of a child born out of wedlock make an order granting the natural father access rights to or custody or guardianship of the child on the conditions determined by the court. An application will be granted should the court be satisfied that it’s in the best interest of the child.

Section 19 of the Children’s Act 38 of 2005 states:

  • A mother, whether married or unmarried, has full rights and responsibilities towards her child, but a married father also has full rights and responsibilities.
  • An unmarried biological father will only have automatic parental rights if he is living with the mother in a permanent life partnership (and consents to being identified as the father).
  • Fathers who are in a cohabitation relationship with the mother to have an inherent right to contact, care and guardianship.

Therefore the biological father does not have any automatic parental rights unless he was in a relationship with the mother. He has the option to apply under section 2(1) of the Natural Fathers Born Out of Wedlock Act 86 of 1987 for access rights to or custody or guardianship of the child.

Here are a couple of important questions answered:

  • Does the biological unmarried father have to pay maintenance: Yes it is his duty to maintain his child
  • Does an unmarried father need to be considered for important decisions: Yes – when it comes to:
    • Passport application for the child
    • Adoption of the child by another person
    • Removal of the child from South Africa
    • If the child wants to get married

Up until the Children’s Act was enforced, the law favoured the mother as the parent who would be given the care and custody of minor children. That situation has since been drastically changed. The court is now required by law to look at what is in the best interests of the child, rather than look at favouring a mother or father as the custodial parent.

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