CHAP 7: CHILD BORN OF UNMARRIED PARENTS

Question 1

PROVISIONS & LEGISLATURE GUARDING CHILDREN

Answer 1

s28(2) of the Constitution state that the best interests of the child is the paramount importance in every matter concerning the child

the Children’s Act pertains that no child should be referred to as illegitimate & the emphasis is now n status of parents, as whether married or unmarried parents

Question 2

PROVISIONS OF CHILDREN & PARENTS

Answer 2

the biological mother has full parental responsibilities & rights over the child regardless of being married or not married

Question 3

HOW FATHERS CAN GAIN GUARDIANSHIP

Answer 3

previously fathers needed to apply to High Court for an order to be guardians in terms of Natural Fathers of Children

Question 3

HOW FATHERS CAN GAIN GUARDIANSHIP

Answer 3

previously fathers needed to apply to High Court for an order to be guardians in terms of Natural Fathers of Children born out of Wedlock Act

but recently accord to the Children’s Act, fathers need to be granted guardianship if he:

consents & identifies as the father
contribute or attempt to contribute to the child’s upbringing for a certain time
contributes or attempt to do so towards expenses in connection with maintenance for a certain period

both parents need to consent to the adoption of the child accord to the Children’s Act should the father be found & consent in writing as admittance to paternity

Question 4

GUARDIANSHIP

Answer 4

refers to a person having parental responsibilities & rights

accord to s18 these are the requirements:

• the guardian must administer & safeguard the child’s property & interests
• assist & represent the child in admin, contractual or other legal matters
• give or refuse any consent required by law in respect of the child

Question 5

CARE [CUSTODY]

Answer 5

the mother is the primary custodian & care place of the child
if there’s any person interested in caring for the child, well-being & development they may apply to the High Court for an order

the mother can be inhibited from custody if it is for the benefit of the child & granted to the person who has the means & abilities to provide the best care for the child

Question 6

FACTORS TAKEN INTO ACCOUNT BY CHILDREN’S ACT TO GRANT CARE [CUSTODY]

Answer 6

best interests of the child

the relationship b/w child & the applicant

the applicant’s commitment towards the child

extent of the contributions in expenses of maintenance of the the child the applicant has made

& the position the applicant is in t care for the child

Question 7

CONTACT [ACCESS]

Answer 7

the Children’s Act allows anyone interested to apply for access to the child & the unmarried biological father can obtain full parental responsibilities & rights

the Children’s Act describes contact as:

if the child lives elsewhere, there should be regular communication incl visiting or being visited by the child

communicate either by post, telephone or any from of electronical communication

Question 8

TYPES OF CHILDREN BORN OF MARRIED BIOLOGICAL PARENTS

Answer 8

if parents were married at conception or birth of the child

if the parents were in a putative marriage

if parents marry each other after the birth of the child (legitimatio per subsequens matrimonio)

if parents marriage is voidable

when the adopted child is adopted by married couple

Question 9

A CHILD BORN OF UNMARRIED BIOLOGICAL PARENTS

Answer 9

natural children [spurii]: born when parents were not married but could be legally married at any time

adulterine [adulterini]: conceived while parents were married to 3rd person

incestuous[incestuosi]: parents are related & fall under prohibited relationships

Question 10

ARTIFICIAL FERTILISATION

Answer 10

accord to the Children’s Act it is the intro by other than natural means of a male gamete(s) into the internal reproductive organs of a woman

artificial fertilisation incl joining of a male & female gametes outside of human body with a view of placing the product in the woman’s womb

Question 11

STATUS OF CHILDREN BORN OF ARTIFICIAL FERTILISATION

Answer 11

if the process was done by married couple, the child is regarded as born in wedlock

both partners need to consent & there’s a rebuttable presumption that they both consented

if the woman is unmarried then the child is regarded as born out of wedlock

even same sex couples having artificial children & unmarried, the child will still be regarded as born out of wedlock

Question 12

SURROGACY

Answer 12

accord to chapter 19 of Children’s Act, the surrogate motherhood agreement must be completed in writing, signed by all relevant parties & confirmed by High Court

the genetic material of the commissioning parents must be used & the child belongs to them

surrogate mothers are permitted to withdraw consent

Question 13

CATEGORIES OF PERSONS THAT DON’T QUALIFY TO BE CONSIDERED AS PARENTS:

Answer 13

biological fathers of a child conceived through rape

biologically related persons only through gamete donor for purposes of artificial fertilization

a person with withdrawn parental responsibilities

Question 13

CHILD OF A MARRIED WOMAN [PATER EST QUEM NUPTIAE DEMONSTRAT]

Answer 13

when a married woman conceives, there’s a rebuttable presumption that the husband is the father

if a woman divorces & soon marries, the second husband will be considered the father of the in between conceived child

Question 14

REBUTTAL OF THE PATERNITY PRESSUMPTION [FOR MARRIED WOMEN]

Answer 14

a father cannot use the infidelity of the wife called exceptio plurium concubentium to deny paternity

the only proof the father can use is sexual abstinence, sterility, proof of use of contraceptive & blood tests

Question 15

HOW CAN A MOTHER CONVINCE PATERNITY

Answer 15

the woman can only prove by admitting to having sexual intercourse with a man, thus giving rebuttable presumption to paternity

the mother has the onus to prove these allegations on a balance of probabilities which can be discharged by the man

accord to s36 of Children’s Act the father also has onus upon him to deny or accept paternity should he provide proof on balance of probabilities that proves otherwise

Question 16

THE STATUS OF A CHILD BORN OF UNMARRIED BIOLOGICAL PARENTS

Answer 16

the woman has full parental responsibilities & guardianship upon the child. if she’s also under guardianship, her guardians are guardians of the child

the mother’s surname is given to the child, unless the father agrees with his & admits paternity in writing & she is responsible for the child’s care

Question 17

AUTOMATIC PARENTAL RESPONSIBILITIES OF BIOLOGICAL UNMARRIED FATHER

Answer 17

the father will have full rights & responsibilities upon the child if he was living with the mother in a life-time partnership situation & consents to being the father or pays customary law damages

contributes or attempted to contribute towards the child’s upbringing

contributes or has tried to in terms of maintenance

Question 18

AGREEMENT OF THE BIOLOGICAL FATHER TOWARDS RESPONSIBILITIES

Answer 18

if there’s no automatic responsibilities, the father can enter into an agreement with the mother to either be granted full or specific parental responsibilities & rights accord to the agreement

Question 19

COURT ORDER FOR FATHER’S PARENTAL RIGHTS & RESPONSIBILITIES

Answer 19

the High Court can grant full or partial rights & responsibilities on the father through application if its in the best interests of the child

this is regulated by the Children’s Act as it also allows father to apply to High Court to be granted guardianship

Question 20

MAINTENANCE

Answer 20

both unmarried parents have an obligation to support the child according to their respective means

the mother is entitled to recover pro rata share if she solely maintained the child from the father or their estates after death

the children also have a right to claim support from the estate of a deceased parent

Question 21

ANOMALIES OF MAINTENANCE

Answer 21

accord to common law the child can refuse to maintain the father should he require to be maintained

common law also placed responsibilities of maintenance upon the maternal side of the child if both parents are incapable but this was considered as contra bono mores thus the preceding case of Petersen v Maintenance Officer holds that the child is allowed to claim from the paternal side for maintenance

Question 22

CAPACITY TO INHERIT: INTESTATE SUCCESSION

Answer 22

accord to common law, parents including blood relatives of the child could not inherit from each other

but with section 1(2) of the Intestate Succession Act provides that all the groups can inherit from each other, esp the child

Question 23

CAPACITY TO INHERIT: TESTATE SUCCESSION

Answer 23

accord to Law of Succession Amendment Act along with the Wills Act contend that children, whether in or out of wedlock are granted the chance to be included in the will & the word “my children” refers to even the extra-marital children