Children of unmarried parents

5 CHILDREN BORN OF UNMARRIED PARENTS

5.1 Introduction

Historically, law identified children as either "legitimate" or "illegitimate" (born out of wedlock). The Children’s Act 38 of 2005 replaced these terms, focusing on parental marital status to define parental responsibilities and rights. The Act indicates "married parents" and "unmarried parents" rather than using illegitimate terms. Legal disabilities historically faced by illegitimate children have been gradually reduced, but full equality between married and unmarried parents' rights is still evolving.

5.2 Definition of Terms

• Children born of married parents: A child born to parents legally married at the time of conception or birth, which includes civil, customary, and religious marriages, as well as civil unions as per the Civil Union Act 17 of 2006.

• Children born of unmarried parents: A child whose parents were not married at the time of the child's conception or birth, which raises unique issues concerning parental rights and child support.

5.3 Categories of Children Born of Unmarried Parents

5.3.1 Introduction

Traditionally, three categories of children born of unmarried parents are acknowledged:

• Natural Children: Parents could have validly married each other, thereby acknowledging the possibility of legal recognition within the paternal lineage.

• Adulterine Children: One or both parents were married to someone else at the time of conception, which often complicates legal recognition and parental responsibilities.

• Incestuous Children: Parents were too closely related to marry, leading to further legal complexities regarding parental rights and societal stigma.

5.4 Artificial Fertilisation

5.4.1 Definition

Artificial Fertilisation: Introduction of male gametes into a woman for reproductive purposes, encompassing traditional and assisted methods (e.g., in vitro). The term is often also referred to as assisted reproduction due to negative connotations associated with "artificial".

5.4.2 Legal Status of Children from Artificial Fertilisation

Children from artificial fertilisation of an unmarried woman are considered as born of unmarried parents, emphasizing the mother's role and rights. Children from artificial fertilisation using a husband's sperm are seen as born of married parents, which leads to legal implications based on consent to use donor sperm. The position of same-sex life partners concerning parental status is defined under specific conditions outlined in Section 40 of the Children’s Act, reflecting ongoing developments in family law.

5.4.3 Relationships and Responsibilities in Artificial Fertilisation

Typically, the woman giving birth is regarded as the child's mother unless acting as a surrogate under valid agreements. Genomic donors generally bear no legal responsibilities towards the child unless acknowledged under specific circumstances, which might include emotional or financial involvement in the child’s life.

5.5 Proof of Parentage

5.5.1 Introduction

Paternity disputes often arise regarding a child's father, leading to presumptions of paternity for children of married versus unmarried women. The Children’s Act specifies exclusions where biological fathers in certain situations (e.g., rape or gamete donation) do not qualify as legal parents, affecting the child's inheritance and support rights.

5.5.2 Presumptions of Paternity

If a woman is married, her husband is presumed to be the father, a presumption that can be rebutted by evidence that casts doubt on his paternity. For unmarried women, a man is presumed to be the biological father only if he had sexual relations with her when conception could have occurred, which places the burden of proof on the alleged father in disputes.

5.6 Legal Relationship Between Child and Unmarried Parents

5.6.1 Introduction

Historically, mothers of illegitimate children held parental authority, while fathers had to seek court intervention for rights, often leading to complex legal battles. The Children’s Act redefined parental responsibilities and rights, granting some unmarried fathers automatic rights under certain circumstances.

5.6.2 Definition and Components of Parental Responsibilities and Rights

Parental responsibilities and rights include areas such as: caring for the child, maintaining contact, assuming the role of guardian, and contributing to maintenance costs. These components form the backbone of the legal relationship between parents and their children, ensuring the child's welfare is prioritized.

5.6.3 Parental Responsibilities and Rights of the Mother

Every biological mother, save for a surrogate, acquires full responsibilities upon giving birth to her child, regardless of marital status. This includes emotional and financial support, as well as legal rights to make decisions in the child's best interest.

5.6.4 Parental Responsibilities and Rights of the Father

Unmarried fathers can automatically acquire parental rights under certain conditions specified in the Children’s Act, including having a life partnership or demonstrating substantial involvement in the child's upbringing. Legal interpretations of these provisions have varied, leading to ongoing debates in courts about the scope and application of fathers' rights as the family's structure evolves.