Many South African children are born to parents who are not married to each other. When the relationship is good, the question of who has which legal rights rarely comes up. When the relationship breaks down, or the mother wants to relocate, place the child for adoption or limit contact, an unmarried father may discover that his position is less secure than he assumed.
The law has moved a long way in recognising unmarried fathers. The Children’s Act 38 of 2005 gives many unmarried fathers full parental responsibilities and rights automatically, and the courts have struck down rules that treated them unfairly. But automatic rights depend on specific requirements, and disputes about whether those requirements are met are common.
This article explains when an unmarried father has parental responsibilities and rights, how he can acquire them if he does not, and the responsibilities that come with being a parent.
The starting point
Under the Children’s Act, parental responsibilities and rights include caring for the child, maintaining contact with the child, acting as guardian, and contributing to the child’s maintenance.
A child’s mother has full parental responsibilities and rights, whether or not she is married. A father who is married to the mother, or was married to her at the time of conception, birth or in between, also has full parental responsibilities and rights. An unmarried father’s position depends on section 21.
When an unmarried father acquires rights automatically
Section 21 gives a biological father full parental responsibilities and rights, without a court order, if either of the following applies:
- Life partnership: at the time of the child’s birth, he was living with the mother in a permanent life partnership; or
- Commitment to the child: regardless of whether he has lived with the mother, he
- consents to be identified, or successfully applies to be identified, as the child’s father, or pays damages in terms of customary law;
- contributes, or has attempted in good faith to contribute, to the child’s upbringing for a reasonable period; and
- contributes, or has attempted in good faith to contribute, towards the expenses of the child’s maintenance for a reasonable period.
All three requirements in the second category must be met. The Act does not define a “reasonable period” or what level of contribution is enough, so each case depends on its facts. A father who wanted to be involved but was prevented by the mother may still qualify if he made genuine, good-faith attempts.
When the parents disagree
If the mother disputes that the father has met the section 21 requirements, the Act requires the matter to be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. A party who is unhappy with the outcome may ask a court to review it. In practice, the High Court or Children’s Court may also be asked to declare whether the father has acquired parental responsibilities and rights.
If he does not qualify automatically
A father who does not meet section 21 still has options:
- Parental responsibilities and rights agreement: the mother and father can conclude an agreement under section 22 conferring rights on the father. It takes effect once registered with the family advocate or made an order of court.
- Parenting plan: parents can agree a parenting plan dealing with care, contact and maintenance, which can be registered or made a court order.
- Court application: a father can apply to court for an order granting him contact, care or guardianship. The court will decide based on the child’s best interests, considering factors such as the relationship between the father and the child and his commitment to the child.
What rights does it give him?
A father with full parental responsibilities and rights is, in principle, on an equal footing with the mother. In practical terms, this means:
- his consent is generally required for major decisions, such as the child’s adoption, removal from South Africa, or applying for a passport;
- he must be consulted on decisions likely to significantly change the child’s living conditions, education or wellbeing; and
- he can ask the court to enforce contact and care arrangements.
The law has also improved in related areas. In 2021 the Constitutional Court declared invalid a provision of the Births and Deaths Registration Act 51 of 1992 that prevented an unmarried father from registering his child’s birth under his surname without the mother’s involvement. In October 2025 the Constitutional Court declared the parental leave provisions of the Basic Conditions of Employment Act 75 of 1997 invalid and, as an interim measure, allowed parents to share the available parental leave between them, regardless of gender or how the child joined the family.
Responsibilities, not just rights
Every parent has a duty to maintain their child, whether or not they have parental responsibilities and rights and whether or not they have contact. Under the Maintenance Act 99 of 1998, the mother can claim maintenance from the father in the Maintenance Court. Contact and maintenance are separate issues. A father cannot withhold maintenance because he is denied contact, and a mother cannot deny contact because maintenance is unpaid.
Practical steps for unmarried fathers
- Acknowledge paternity. Make sure you are named on the birth certificate, or apply to be identified as the father.
- Stay involved. Spend time with your child and take part in decisions about schooling, healthcare and activities.
- Contribute financially, and keep records. Pay maintenance regularly by traceable means and keep proof of other contributions.
- Keep evidence of your efforts. If contact is refused, record your attempts in writing, such as messages and emails.
- Formalise the arrangement. A registered parental responsibilities and rights agreement or parenting plan avoids later disputes.
- Act quickly if a major change is proposed. If the mother plans to relocate, especially abroad, or to place the child for adoption, take advice immediately.
How O’Reilly Law can help
We advise unmarried fathers and mothers on parental responsibilities and rights, draft and register parental responsibilities and rights agreements and parenting plans, and assist with mediation through the family advocate. Where agreement is not possible, we bring or oppose applications for care, contact and guardianship, and handle related maintenance and relocation disputes.
Contact us to discuss your rights as a parent.
Related reading: Care, contact and parenting plans under the Children’s Act · Child maintenance: how much, until when, and what to do when the other parent won’t pay
This article is general information and not legal advice. Correct as at November 2026.