Do you know your legal rights as a single parent?

There are any number of reasons parents go it alone today. Whether you choose and plan it, or your relationship breaks down, know your rights, and where to find help.

Start right

Parents need to register their children at Home Affairs within 30 days of birth. In the case of single mothers, the baby is registered under the mother's surname, unless both parents jointly request in writing that the father's surname be used. 

If the father wants to register the baby under his name and the mother is opposed to it, she can refuse. He may then apply to a court for this, says Candice Eve-Friis, partner in the Child and Family Law department at Shepstone & Wylie Attorneys in Durban.

Know your rights and responsibilities

Parents are responsible for caring for their child, for giving legal consent – for example, for them to be adopted, to marry, or to leave the country – and for safeguarding their property interests until they turn 18. However, the maintenance obligation extends until they are self-supporting, says Eve-Friis. 

If the father wants to be declared a co-holder of parental rights and responsibilities, he can seek a declaratory order in terms of Section 21 of the Children's Act, she says. Under this, an unmarried biological father has parental rights and responsibilities only if he complies with all the requirements of that section, and, for example, was living in a partnership with the mother at the time of the birth; applied to be registered as the father on the birth certificate; pays damages in terms of customary law; contributes (or tries to contribute) to the raising of the child; and pays (or tries to pay) maintenance.

Maintenance

Under South African law, both parents, married or unmarried, must contribute to the maintenance for their child's upbringing, including housing, food, medical care, clothing and education. The biological father is also liable to pay towards pregnancy and birth costs, and if maintenance is finalised only after the birth, he could be ordered by a court to back-pay this.

To get maintenance from an unwilling dad, if his name is not on the birth certificate the court will order a paternity test. It will then give the mother a court date and subpoena the father to be there. He must then pay each month, or the mother can again approach the court, and they will issue a warrant for his arrest and for the payment of arrears, or a garnishee order, so his employer deducts maintenance from his salary and pays it straight to the mother.

You don't have to have a lawyer to apply for maintenance, but it can help to speed up the court process if you can afford one, says Eve-Friis. 

Handling disputes

If parents disagree on maintenance, visitation or any other issues, it's a good option to apply for mediation and to draw up a parenting plan covering issues like these, she says.

If mediation fails, the mediator will issue a certificate stating the outcome, and the mother or father can then approach the High Court for a court order. If the parents go straight to court, the court will in any case generally refer the matter to the family advocate for investigation.

For more information contact The Family and Marriage Society of South Africa, The Office of the Family Advocate, and The South African Association of Mediators.