CHAP 7: CHILD BORN OF UNMARRIED PARENTS Flashcards
PROVISIONS & LEGISLATURE GUARDING CHILDREN
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
PROVISIONS OF CHILDREN & PARENTS
the biological mother has full parental responsibilities & rights over the child regardless of being married or not married
HOW FATHERS CAN GAIN GUARDIANSHIP
previously fathers needed to apply to High Court for an order to be guardians in terms of Natural Fathers of Children
HOW FATHERS CAN GAIN GUARDIANSHIP
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
GUARDIANSHIP
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
CARE [CUSTODY]
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
FACTORS TAKEN INTO ACCOUNT BY CHILDREN’S ACT TO GRANT CARE [CUSTODY]
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
CONTACT [ACCESS]
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
TYPES OF CHILDREN BORN OF MARRIED BIOLOGICAL PARENTS
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
A CHILD BORN OF UNMARRIED BIOLOGICAL PARENTS
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
ARTIFICIAL FERTILISATION
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
STATUS OF CHILDREN BORN OF ARTIFICIAL FERTILISATION
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
SURROGACY
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
CATEGORIES OF PERSONS THAT DON’T QUALIFY TO BE CONSIDERED AS PARENTS:
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
CHILD OF A MARRIED WOMAN [PATER EST QUEM NUPTIAE DEMONSTRAT]
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
REBUTTAL OF THE PATERNITY PRESSUMPTION [FOR MARRIED WOMEN]
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
HOW CAN A MOTHER CONVINCE PATERNITY
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
THE STATUS OF A CHILD BORN OF UNMARRIED BIOLOGICAL PARENTS
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
AUTOMATIC PARENTAL RESPONSIBILITIES OF BIOLOGICAL UNMARRIED FATHER
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
AGREEMENT OF THE BIOLOGICAL FATHER TOWARDS RESPONSIBILITIES
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
COURT ORDER FOR FATHER’S PARENTAL RIGHTS & RESPONSIBILITIES
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
MAINTENANCE
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
ANOMALIES OF MAINTENANCE
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
CAPACITY TO INHERIT: INTESTATE SUCCESSION
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
CAPACITY TO INHERIT: TESTATE SUCCESSION
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
