LAW OF PERSONS

CHAPTER 7 – CHILDREN BORN OF UNMARRIED PARENTS

 LEARNING OUTCOMES

After completion of this unit, the student should be able to:

1. Distinguish fully between children born in and out of wedlock in South African law.
2. Analyse and discuss the ways in which paternity can be proven in South African law.
3. Discuss the status of a child born of unmarried parents. Your discussion should provide for
a detailed analysis of the legal positions regarding guardianship, care, contact and
maintenance.
4. Distinguish between the capacities to inherit testate and intestate of children born out of
wedlock.
1. INTRODUCTION

 Section 28(2) of Constitution of the Republic of South Africa, 1996.

 Children’s Act 38 of 2005.
 2. CHILDREN BORN OF UNMARRIED PARENTS
2.1. Introduction
 Is there a diference?
 Common law: Very distinct diference.
 Current SA law: Diference has been reduced.
 To the extent that there are still diferences, it can be found in the distinction between the
responsibilities and rights of unmarried parents and those of married parents.
 Because this diferentiation exists, it is necessary to have a clear understanding of the distinction
between children born of married parents and children born of unmarried parents.
 This distinction is made on the assumption that the identity of the biological parents are
known.
 As far as artifcial fertilisation and surrogacy are concerned, it can be problematic to determine
the identity of the biological parents and / or the biological parents are not necessarily the persons
with parental responsibilities and rights.
 Artifcial fertilisation and surrogacy will consequently be discussed in more detail
2. CHILDREN BORN OF UNMARRIED PARENTS
2.2. Children born of married parents

A child is considered to having been born of married parents if:

 The child’s biological parents were married to each other at the time of the child’s
conception, birth, or any time between conception and birth. See sec 20 of Children’s Act.
 The child is born of a putative marriage. What is a putative marriage?
 The child’s biological parents marry each other after the birth of the child. See s.38 of the
Children’s Act.
 Child born of voidable marriage maintains his/her marital status if marriage annulled. See s. 39 of
Children’s Act.
 An adopted child is considered the marital child of the adopting parents if the latter are married
to each other. See s. 228-253 of the Children’s Act.
 Children conceived through artifcial insemination could have marital status in South Africa.
2. CHILDREN BORN OF UNMARRIED PARENTS

2.3. Children born out of unmarried parents

 i. Natural children (spurii)

 Children whose parents, although they were not married to each other at the time of the child’s
conception, birth or any time in between, could legally have been married to each other.

 ii. Adulterine children (adulterine)

 Children conceived while one or both parents were married to a third person.

 iii. Incestuous children (incestuosi)

 Children whose parents are not able to marry each other because they are too closely related
by blood.
3. ARTIFICIAL FERTILISATION
3.1. Defnition

 Children’s Act sec 1(1): “the introduction by other than natural means of a male gamete or
gametes into the internal reproductive organs of [a] woman.”

 A “gamete” is the generative cell which is essential for human reproduction, that is a
sperm or an ovum.

 Artifcial fertilisation also includes the joining of a male and female gamete outside the
human body with a view to placing the product in a woman’s womb.
 3. ARTIFICIAL FERTILISATION

3.2. Status of a child born as a result of artifcial fertilisation

 Married woman with gametes of her husband: child born of married parents.
 Married woman with gametes of donor: child born of married parents. Children’s Act sec 40(1)(a) requires consent
of both spouses for artifcial fertilisation of one of them. There is a rebuttable presumption that consent was given by
both spouses.
 Unmarried woman: child born of unmarried parents.
 Children’s Act sec 40(2): artifcially fertilised mother is mother of child
 No distinction is drawn in this section between a married and an unmarried woman.
 It is important to remember that no right, responsibility, duty or obligation arises between a child born of a woman as a
result of artifcial fertilisation and any person whose gametes have been used.
 This principle will not apply if the donor is also the woman who gave birth to that child or the husband of such a woman

 Section 40 also applies to same-sex partners in terms of the Civil Union Act.
The inference is that a child born of a same-sex or heterosexual unmarried couple with the use of artifcial fertilisation will be
regarded as the child of unmarried persons
 3. SURROGACY
3.3. SURROGACY
 Children’s Act chapter 19 brings legal certainty regarding validity and enforceability of the
contract between surrogate mother and commissioning parents.
 Sec 292(1)(a) and (b): Agreement must be in writing, signed by relevant parties and confrmed
by High Court.
 Sec 293: Available to more than just married persons, but written consent of life partner is also a
requirement.
 Sec 294: Genetic material of one or both commissioning parents must be used.
 sec 297(1)(a): Child is considered child of commissioning parents:
 Other issues, for example,
 the obligation of the surrogate mother to surrender the child,
 the fact that the surrogate mother is not liable for maintenance of the child and
 the termination of the agreement are also regulated by the act.
 4. PROOF OF PATERNITY

4.1 Introduction
 In most cases where parenthood is in dispute, the actual issue is disputed fatherhood.
Uncertainty of who the mother is may result from child switched in hospital, if child is a foundling
or if child is born as a result of artifcial fertilisation or surrogate motherhood.
 If fatherhood is claimed, a distinction is made between situation where mother is married or
unmarried.
 Although parentage is usually based on a genetic link with the child, the Children’s Act expressly
excludes the following three categories of persons from legally qualifying as a parent :
 the biological father of a child who was conceived through rape of or incest with the mother;
 any person who is biologically related to a child by reason only of being a gamete donor for purposes
of artifcial fertilisation; and
 a person whose parental responsibilities and rights in respect of a child have been terminated.
 4. PROOF OF PATERNITY
4.2. Child of a married woman
4.2.1. Presumption created by pater est quem nuptiae demonstrant

 “Father of the child is designated by the marriage”.

 When a married woman gives birth to a child, it is rebuttably presumed that the woman’s husband is the
father of the child.
 Presumption also applies if children were conceived prior to the marriage but born after the marriage, as
well as children conceived during the marriage but born after the termination thereof.
 If a marriage is terminated and woman re-marries so soon thereafter that conception could have taken
place in either of her marriages, the abovementioned presumption will apply in respect of the second
husband.
 SEE CASE: VERY IMPORTANT: F v L 1987 4 SA 525 (W).
To illustrate this point, in F v L, where the mother of the child admitted to having had sexual intercourse with two
men at the time of conception of the child, but married one of the men three weeks prior to the birth of the child, the
court ruled that presumption operated in favour of the woman's husband.
 4. PROOF OF PATERNITY
4.2.2. Rebuttal of the presumption
 Presumption can be rebutted if husband proves that he is not the actual father of the child.
 Onus rests on woman’s husband to prove on balance of probabilities that it is impossible that he is
child’s father.
 How is this proven? Factors to be taken into account:
 Sexual abstinence,
 sterility,
 blood tests,
 appearance and
 the use of contraceptives.

 Exceptio plurium concubentium has never formed part of South African law. WHAT IS THIS?
 The exceptio plurium concubentium (a denial of paternity because the woman concerned had also had
sexual intercourse with another man or other men during the time at which the child was probably
conceived) has never formed part of South African law
 4. PROOF OF PATERNITY

4.3. Child of an unmarried woman

 Pater est quem rule does not apply to unmarried women.
 Unmarried woman must prove sexual intercourse with the alleged father of the child at the time of conception.

 Section 36 of the Children’s Act:

Once she has done this, there exists a rebuttable presumption that the man with whom she had sexual
intercourse is the father of the child.
 4. PROOF OF PATERNITY
4.3.1. Onus on the mother
 The initial onus rests on the mother to prove, on a balance of probabilities, that she had sexual intercourse with
the alleged father of the child at a time when the child could have been conceived.
 It is obvious that this onus can be discharged by a man’s admission (judicial or otherwise) that sexual
intercourse did take place at a time when the child could have been conceived
4.3.2. Onus on the father
 Once mother has discharged her onus, the onus shifts to the father to prove on a balance of probabilities that
he cannot possibly be the father of the child.
 In order for the presumption of paternity can be rebutted.
 According to section 36 of the Children’s Act, the presumption of paternity will apply in the absence of evidence
to the contrary which raises a reasonable doubt.
 Put diferently it is expected of the man to present evidence that raise reasonable doubt about his alleged
paternity.
 Requiring evidence to the contrary which creates “a reasonable doubt”, is a heavier burden of proof than the
one in civil matter, namely “on a balance of probabilities”.
 It is clearly unconstitutional that an unmarried man must discharge a heavier burden of proof.
 5. STATUS OF A CHILD OF UNMARRIED BIOLOGICAL PARENTS

In the past, extra-marital birth placed certain limitations on the competencies, rights and duties
which the parents (in particular the father) had towards the child.
 The mother of the child, for example, had parental authority over her child.
 The father, on the other hand, had no parental authority but still had to support his child.

Since the commencement of the Children’s Act, there is no longer any reference to extra-marital
children. The emphasis is now on the marital status of the biological parents, which in turn has an
impact on the way in which a parent-child relationship is created.
Parental responsibilities and rights are defned in the Children’s Act to include :
 The responsibility and right to care for a child ;
 The responsibility an right to maintain contact with the child ;
 The responsibility and right to act as guardian of the child ; and
 The responsibility and right to contribute to the maintenance of the child.
 5. STATUS OF A CHILD OF UNMARRIED BIOLOGICAL PARENTS

Parental responsibilities and rights of the unmarried biological mother:

 The biological mother of a child, married or unmarried, has full responsibilities and rights, which
includes guardianship, in respect of her child.
 If the biological mother of a child is an unmarried child who does not have guardianship of the
child and the biological father does not have guardianship of the child, her guardians are also the
guardians of the child.
 A child adopts the surname of the unmarried mother. It is possible to register the child under
the surname of the unmarried biological father if this is done at the request of both parents and
on condition that the father admits his paternity in writing.

Care of a child rests with the child’s mother, married or unmarried, even if she herself is an
unmarried child
 5. STATUS OF A CHILD OF UNMARRIED BIOLOGICAL PARENTS
Parental responsibilities and rights of the unmarried biological father
Automatic parental responsibilities and rights
 See Children’s Act rights of natural fathers to care of child. This right is not limited to fathers, but to any person having an interest
in the care, wellbeing and development of the child.
See Docrat v Bhayat 1932 TPD 123; Bethell v Bland 1996 2 SA 194 (W); Coetzee v Singh 1996 3 SA 153 (D).
 The Children’s Act provide that the unmarried biological father of a child can obtain full parental responsibilities and rights
(guardianship, care and contact) under certain circumstances. The father will obtain such responsibilities and rights if, at the time of the
child’s birth, he was living with the mother in a permanent life-partnership , or if he, irrespective of whether or not he is living with the
mother,
 consents or successfully applies to be identifed as the child’s father or pays damages in terms of customary law ;
 contributes or has attempted to contribute to the child’s upbringing for a reasonable period ; and
 contributes or has attempted to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

Agreement
 Section 22(1) of the Children’s Act: Unmarried biological father of a child can obtain full or specifc parental responsibilities and rights
(including contact) of the child. The agreement must comply with certain requirements and will only become enforceable when it is
registered with the family advocate or is made an order of court on the parties’ application. Only a High Court may confrm
an agreement that relates to the guardianship of a child.
Court order
 Only a High Court may confrm an agreement that relates to the guardianship of a child. Court always seeks what's the best interest of
the child.
 5. STATUS OF A CHILD OF UNMARRIED BIOLOGICAL PARENTS
Maintenance
 Both biological, unmarried parents of a child have a legal obligation to support the child.
 Maintenance includes the expenses relating to the birth of a child, as well as maintenance in arrears.
 This duty is apportioned between them according to their respective means.
 If mother bore initial costs, she is entitled to a pro rata share from the child’s father or the deceased
father’s estate.
 Extent of maintenance is determined by the reasonable needs of the child.
 Anomalies as to the duty to maintain in South African Law:
 Duty to maintain: reciprocal.
 Problem 1: Common law places no obligation on the child of unmarried biological parents to maintain his/her father.
 Problem 2: If unmarried biological parents cannot maintain the child, duty is shifted to grandparents on mother’s side, but
not father’s side. Motan v Joosub 1930 AD 61:
 Also: Petersen v Maintenance Ofcer, Simon’s Town Maintenance Court 2004 (2) SA 56 (C).

 Children of unmarried biological parents are further in exactly the same position as children of married parents regarding
their right to claim support from the estate of a deceased
Motan v Joosub 1930 AD 61:
In my view the common law rule as interpreted in Motan and in particular the differentiation between
the duty of support of grandparents towards children born in wedlock and extra-marital children,
constitutes unfair discrimination on the ground of birth and amounts to an infringement of the dignity
of such children. The common-law rule is also clearly contrary to the best interests of extra-marital
children. It follows … that it violates the constitutional rights of extra-marital children …

According to the principle of precedent, it is accepted that Motan is currently the standing authority,
but that the courts, in the future and in the light of the Petersen case, could deviate from this point of
view. It is submitted that the Petersen case correctly represents the position after the coming into
operation of the Constitution and that it will increasingly be used to deviate from the decision in Motan.
 5. STATUS OF A CHILD OF UNMARRIED BIOLOGICAL PARENTS
5.4. Capacity to inherit
 Intestate succession
 Before Intestate Succession Act 81 of 1987 came into operation: Een wijf maakt geen bastaard.
 Rule meant that a woman did not have extra-marital children.
 Intestate succession: Extra-marital children were in the same relation to their mother (and her blood
relations) as marital children, but that extra-marital children could not inherit intestate from their
father or his family.
 Father could also not inherit intestate from his extra-marital children.
 Today: Section 1(2) of Intestate Succession Act: Birth out of marriage (wedlock) does not afect the
capacity of one blood relation to inherit from another.
 There is consequently, as far as intestate succession is concerned, no longer any distinction between
marital and extra-marital children. An extra-marital child inherits intestate from both his or her
mother and natural father, as well as from his or her blood relations on both the mother's and
father's side and they, in turn, can inherit intestate from the extra-marital child
 5. STATUS OF A CHILD OF UNMARRIED BIOLOGICAL PARENTS

5.4. Capacity to inherit

 Testate succession
 Both parents of a child born out of wedlock may beneft child in a will.
 As regards testate succession, both the mother and father of an extra-marital child are free to beneft such a child
in a will. There have, however, been interesting developments surrounding the words "my children", which
regularly present themselves in wills.
 It was previously accepted by the courts that, should a mother use these words in her will, she was referring to both her
marital and extra-marital children.
 If the natural father, however, made use of these words, the point of departure was that the intention of the testator should
be determined but that, in the case of uncertainty, he only had the intention to beneft his marital children.
 The Wills Act was recently amended by the Law of Succession Amendment Act.
 Section 2D(1)(b) now provides that, when a will is interpreted, the fact that a person has been born out of wedlock
must be ignored when determining his or her relationship for the purposes of the will.
 The conclusion can thus be reached that this is yet another example of the normalising of the status of the extra-
marital child so that there is, in principle, no longer any diference between marital and extra-marital children as far
as the law of succession is concerned