This issue is very closely related to the parental responsibilities and rights of unmarried fathers, so a good starting point is to analyse what the Children’s Act 38 of 2005 says about the responsibilities of unmarried fathers towards their children.
Firstly, section 19 of the Act automatically confers full parental responsibilities and rights on the biological mother of a child. What this means is that the mother of the child has responsibility and right to care for the child, maintain contact with the child, act as the guardian of the child and contribute towards the maintenance of the child.
But what of the father? Section 20 of the Act provides that, if the father is married to the mother or was married to the mother at the time of conception, birth or any time between conception and birth, he acquires full responsibilities and rights identical to the biological mother of the child.
However if the father is not married to the mother (as contemplated in section 20), the Act states (in section 21) that these responsibilities and rights can be acquired as follows.
If the father was living with the mother in a permanent life partnership at the time of the birth. Or, regardless of whether or not he was living with the mother, if he consents to be identified as the child’s father (or pays damages in terms of customary law), contributes or attempts to contribute to the child’s upbringing for a reasonable period and contributes or has attempted to do so towards expenses in relation to the maintenance of the child for a reasonable period.
Sadly there is also a general trend in South Africa towards the non-payment of maintenance for children
This section however does not affect the duty of a father to contribute towards the maintenance of a child – in other words, even if a father does not take the steps contemplated in section 21, he retains the obligation to maintain the child based on paternity alone.
The question which then arises is what happens in a situation where a child is born and the purported father of the child denies paternity and refuses to contribute towards the maintenance of the child?
Section 36 of the Act provides that in any legal proceedings in which it is necessary to prove that any particular person is the father of a child born out of wedlock (for example in a maintenance inquiry), it is proved that that person had sexual intercourse with the mother of the child at any time when that child could have been conceived, that person is, in the absence of evidence to the contrary which raises a reasonable doubt, presumed to be the father of the child.
Section 37 of the Act goes further to state that if a party to any legal proceedings in which paternity has been placed in issue refuses to submit himself, herself or the child to the taking of a blood sample in order to carry out scientific tests relating to the paternity of the child, the court must warn such party of the effect which such refusal may have on the credibility of that party.
Accordingly the Act provides the necessary tools for establishing paternity. Once paternity has been established, the father of the child then attracts the responsibility of contributing towards the maintenance of the child. Maintenance is calculated taking into account the financial means of the parents of the child and the reasonable needs of the child.
In the absence of an agreement pertaining to the maintenance of a child, the party seeking a contribution can approach the maintenance court in the area in which the child resides and commence a maintenance inquiry with the assistance of a maintenance officer.
The procedure is a relatively simple one which entails the completion of standard forms which can be found on www.justice.gov.za, alternatively which will be provided by the court having jurisdiction. Whilst it is not necessary for a party to employ the services of an attorney to commence a maintenance inquiry, the process can become a laborious and time consuming one as the courts are extremely busy, overloaded and underfunded.
Sadly there is also a general trend in South Africa towards the non-payment of maintenance for children. The courts have the remedial powers to attach the salary, property or debts of the defaulter. In addition, non-payment of maintenance is a criminal offence which carries a sentence of a year in prison with or without the option of a fine.