Family Law

Family Law Matters – Parental Rights and Responsibilities in South Africa

Family law is complex and entails various laws, including the Children’s Act of 2005 regarding parental rights. As family law attorneys, we provide legal guidance and litigation, as well as dispute resolution assistance in matters of South African family law.

Under South African law, the rights of the child must be protected. As such, parental rights and responsibilities are considered by the Family Advocate in terms of the best interest of the child.

We briefly take a look at some aspects of family law regarding parental rights and responsibilities to help you understand why the assistance of experienced family law attorneys can be beneficial.

What are the rights and responsibilities of the mother?

Full parental rights and responsibilities are by default awarded to the biological mother of the child, whether she is married, unmarried, or divorced. It sounds straightforward, but what if the biological mother of a child is a minor and unmarried? Who has guardianship of the child? The answer is more complex than stated here and best discussed with our family law attorneys, but it comes down to the following:

  • Unless the biological father has guardianship of the child, the guardian of the biological mother is also the guardian of the child.


What are the rights of the married father?

If the biological father of the child is married to the child’s mother, then he has full parental rights and responsibilities. This also pertains if he was married to the child’s mother at the time of conception, at the birth of the child, or between the conception date and the birth of the child.

What if the father is unmarried?

The unmarried biological father without the parental rights and responsibilities that fall within the category of married fathers, gains full parental rights and responsibilities over the child when the child is born, if the said biological father lives with the mother in a life partnership of permanent nature. This applies even if he is living with the mother at the time or not.

However, he must consent to being the child’s biological father, must have proven his biological link with the child, or must pay damages according to customary law. He must contribute to or have attempted to do so regarding the child’s care and upbringing for a period deemed reasonable by law. In addition, he must contribute or must have attempted to do so regarding the expenses related to the child’s maintenance for a period that can be deemed reasonable by law in South Africa.

Can one get rights through an agreement?

It is possible to get parental rights and responsibilities regarding a child if the person has an interest and care in the development and wellbeing of the child. Note that such an agreement must be registered with the Family Advocate, or it must have been at the order of a divorce or High Court.

What about parental rights for parents of a child born from a surrogacy agreement?

In effect, the surrogacy agreement covers the awarding of parental rights. The surrogacy agreement must be confirmed in a High Court of South Africa before the IVF process can commence. According to the Children’s Act, there must be a genetic link from at least one of the commissioning parents with the child. As such, the commissioning parent/s has full parental rights and responsibilities regarding the child from the moment that the child is born. The law provides that the surrogate must hand over the child to the commissioning parents as soon as reasonably possible.

Unless so stipulated in the surrogacy agreement, the surrogate and her family have no parental and contact rights with the child. Do note that should the parties to the surrogate agreement commence with the IVF process before confirmation of the surrogacy agreement by the High Court, the agreement is void and the surrogate gains full parental rights and responsibilities of the child. It is also illegal to commence with the IVF process before the confirmation of the surrogacy agreement by the High Court, so the parties can therefore be prosecuted for such. It is best to seek family law and surrogacy law advice before signing a surrogate agreement in South Africa.

Parental rights and responsibilities are complex issues best discussed with our experienced family law attorneys.




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