A GUIDE TO FAMILY LAW

Child law, and the right of children has a plethora of applications in the law. The concept of Children’s rights can be applied to the birth of a child, paternity, the right of a parent to a child, maintenance and contact in respect of the said child to mention only a few. The right of a parent to have contact to his or her child, is contained in the Children’s Act, whereas maintenance places a duty on parents to financially support their children.?Should a parent be unable to support his or her child, the concept of grandparents’ duty to support grandchildren becomes applicable.

5.1???????The Birth of a child

Generally, it is accepted that a child has to be registered once such child is born. Practice is either that the father or the mother registers the child at Home Affairs in compliance with legislation. However, recently, in?Centre for Child Law v Director-General: Department of Home Affairs and Others[1]?the Full Court of the ECG in Grahamstown, declared section 10 of the?Births and Deaths Registration Act 51 of 1992?(the Act) invalid and inconsistent with?the Constitution?to the extent that it prohibits an unmarried father from giving notice of the birth of his child under his surname, in the absence of the child’s mother or without her consent. ?Section 9(1) of the Act provides for the notification of the birth of any child ‘born alive’. Section 9(2) provides that this notification is ‘subject to the provisions of section 10’. Section 10 deals with the notification of the birth of a child born out of wedlock and made the exercise by an unmarried father of his right under section 9(1) contingent on either the mother’s presence or her consent. In?Centre for Child Law v Director General: Department of Home Affairs and Others[2]?2022, the CC by a majority (per Victor AJ with Jafta, Khampepe, Madlanga, Majiedt, Mhlantla, Theron and Tshiqi JJ concurring) sets out reasons for

“…finding that section 10 differentiated unjustifiably between married and unmarried fathers in relation to registration of the birth of a child in the surname of the father, which amounted to unfair discrimination. The retention of section 10 of the Act would undermine the unmarried father’s right to dignity. It implied that an unmarried father was not entitled to be treated as worthy of registering the birth of his child with his surname in the mother’s absence merely because he and the child’s mother were not married. Section 10 was manifestly inconsistent with the rights to equality, dignity and the best interests of the child and had to be severed in its entirety. Because section 9(2) stated that it was ‘subject to the provisions of section 10’, that proviso had similarly to be severed. An order was made that the declaration of invalidity would take effect from the date of the order...”

5.2???????Child Maintenance

(i)?????????It is clear from legislation that both parents have a duty to maintain the child/children according to their respective means.?Such duty exists irrespective of whether the child has been adopted or born in/out of wedlock. The Courts in respect of child maintenance ventures on an investigative - journey in regard to the referred to “respective means” of the parties and are ad idem that what is “reasonable” will depend on the family’s (i) standard of living, (ii) their respective income and the (iii) cost of living, the child/children has/have become accustomed to. The standard of living usually determines whether expenses for recreation, and secondary- and tertiary-level education will be awarded. An order in respect of maintaining a child/children may be awarded either by virtue of a divorce order (incorporating the maintenance and contact to the children); or may be an order by a maintenance court by virtue whereof any party acting on behalf of a child, whom has a right to maintenance, may approach the court and institutes proceedings against the other party (parent) for contribution to said maintenance of the child/children.

(ii)????????Once such order has been made by a competent court, having jurisdiction to entertain such matters, the order will remain in existence, until such time, any of the parties approaches a court for a variation, reduction or setting aside of the existing order. A variation may be brought on grounds such as a “material change in financial circumstances”.

(iii)??????Section 18 of the Children’s Act 38 of 2005 states that the parental responsibilities and rights in respect of a child include the responsibility and the right to contribute to the maintenance of the child. A child is entitled to reasonable maintenance, which maintenance is a term used to describe a party’s duty to provide for clothing, housing, dental and medical care, education, and training, and, where applicable, recreation. Parenthood automatically results in the obligation of both parents to support a child, this obligation is a common law duty that arises on the child’s birth and is also provided for in s 15(3)(a) of the Maintenance Act 99 of 1998, regardless of whether the child is born in or out of wedlock (see S v Badenhorst 1997 (1) SACR 311 (W)).

(iv)???????This primary duty of a parent (s) to support the child is an obligation which will continue until the child becomes self-supporting. Should one of the child’s parents pass away, the primary duty to maintain the child will become vested in only the surviving parent. However, if both parents are unable to support the child, this obligation will be extended, or will pass to the grandparents of the child. Should the grandparent (s) however also be unable to?support the grandchild (ren) the primary duty to support will pass on to the siblings of the child only if the grandparents have passed away or if they do not have sufficient means to provide support.

(v)????????Legally and in principle, the obligation of a parent to support a child only terminates on the child’s death and not upon the parent (s) passing away. Since children retains the right, in the latter instance to still claim maintenance from the deceased parent’s estate[3]

Hierarchical duty to Support

(vi)???????The common law recognises a hierarchical duty of support[4], whereas the duty to support rests on the primary caregiver, the parents first, thereafter?the duty of support falls to grandparents, and failing them, great-grandparents – in that ascending order – before considering relatives in the collateral line such as siblings. In Barnes v Union and Southwest Africa Insurance Co Ltd[5], the court found that there is an ‘order of priority’. The court went further to explain that should parents not be able to support their children, the duty to support falls on paternal and maternal grandparents. In Petersen v Maintenance officer, Simon’s Town Maintenance Court, and Others[6], the court affirmed the obiter dictum in Barnes v Union and Southwest Africa Insurance Co Ltd by recognised that paternal grandparents have a duty of support towards a grandchild. In FS v JJ and Another[7] the Supreme Court of Appeal found that a parent’s rights and responsibilities ‘outrank’ those of grandparents and on that basis, it overruled a ‘care order’ that had been issued in the grandparent’s favour.

5.3???????Maintenance for Adult Dependant Child

Many of our High Courts have handed out conflicting judgments when it comes to the issue of whether a parent can claim maintenance on behalf of a child who has reached the age of majority but is still financially dependent on his or her parents. The Supreme Court of Appeal in Bloemfontein has given clarity to the issue in the case of?Z v Z[8]?and ruled that

“…a parent can claim maintenance for an adult dependent child from the other parent upon divorce.?In the matter before the court the mother) and the father were married to each other and at the time of divorce had two major children born of the marriage. The mother-initiated divorce proceedings against the father and claimed, inter alia, maintenance for the major children. The father raised a special plea alleging that the mother lacked locus standi to lodge the claim for maintenance on behalf of the major children. The mother approached the Supreme Court of Appeal, appealing against an order of the Eastern Cape High Court, relying on section 6 of the?Divorce Act?which she contended gives her the capacity to claim maintenance of behalf of the major dependent children. The Supreme Court of Appeal held that section 6 of the Divorce Act is clear and should be read as is, as it serves as a safeguard to the welfare of both adult dependent and minor children of a marriage. The court further stated that there is no requirement for an adult dependent child to be joined as a party to the divorce proceedings, since the court order will only be binding on the parents…”

?5.5???????Rights to a child - Sperm donors and their rights regarding the child

A new phenomenon, allowing opportunity to parents that are unable to conceive, or who chooses not to, is one ‘known donor agreement’, where sperm is donated. The legal consequences that flow from such agreement is still unknown in our legal landscape. The recent case of?QG and Another v CS and Another?(GP)[9] (Kollapen J)?however gives some clarity in this regard:

(i)?????????In that matter, a lesbian couple were seeking the help of a sperm donor to conceive a child. The first applicant in the matter confirmed he will be the sperm doner. The parties entered into a known sperm donor agreement in terms of which the respondents were established as the legal parents of the donor-conceived child. The first applicant was barred from obtaining parental responsibilities and rights in relation to the donor-conceived child. The applicant after interaction with the child, came to the realisation that he wanted to play an active role in the child’s life. Conflict pursued and the first applicant sought an order in terms of which he would be granted interim access to the child whereby he would be entitled to have contact with the child at certain agreed on times. The primary objective of the first applicant was to obtain guardianship in relation of the child.

(ii)????????South African Law

Sections 23; 40 and 26(2) of the Children’s Act, Act 38 of 2005 plays an important part in regard to this matter. It is trite in South African law that these sections dictate the rights and responsibilities in regard to gamete donors, which stipulates that the gamete donor relinquishes any claim to parenthood, and the attendant rights and responsibilities that come with it. Accordingly, a person does not qualify as a person having an interest in the care, well-being or development of a child as provided for in ss 23(1) and 24(1) of the Act because of a genetic link caused by gamete donation

(iii)??????Order of Court

The court found that the relief sought by the applicants had to fail. The court emphasised that the reason for such failure was not based on the fact that the applicants were ill-suited in their commitment to the child but rather in recognition of the family that the respondents had made for themselves in their relationship with their child, were intimate and special and were both worthy and deserving of constitutional protection from outside interference, even if the latter was well-meant. The granting of the contact rights sought would, therefore, not be in the best interests of the child.

5.6???????Rights of a non – parent

The position of the ‘non-parent’ is increasingly becoming more relevant in our day and age. ‘Non-parents’ are described as those individuals who play a role of caretaker in the lives of minor children or have involvement with the child but do not have the same legal rights as parents regarding decisions about the child and their life.

This concept recently was raised in the case of RC v SHC?(GJ)[10]

This concept is evaluated against the Children’s Act 38 of 2005. Section 23 of the Act specifically deals with the ‘assignment of contact and care to [an] interested person by [an] order of court’, and s 24 subsequently deals with the ‘assignment of guardianship by [an] order of court’.

The judgment of?RC v SHC?was delivered on 18 March 2022, the applicant had served in a ‘fatherly role’ to the minor child, B, after being romantically involved with the respondent from the date of B’s birth until the age of four. The parties shared a communal home for two and a half years. The relationship had since broken down. The applicant, not being the legal father of B sought legal relief based on ss 23 and 24 (in two parts) of the Act to maintain his role in the life of the minor child. The respondent has two minor children, B and an 11-year-old son, D. In the interests of both children involved, the considered outcome effects the livelihoods of both children. In the two-part consideration, the court scrutinised the best interest of the children. The applicant had greatly contributed to the lives of both minor children in terms of financial support and had undertaken to continue with his contributions in terms of B, should the application be successful.

“…The court concluded that the applicant had not satisfied the fact that he has the necessary?locus standi?to bring the matter to the court in the first place. Although, he has inserted himself into the life of the minor children and maintained a fatherly relationship up until this relationship with the respondent broke down, legal rights pertaining to the children should not be awarded unless it is in the utmost best interest of the child. The court concluded that the applicant had not established that he is a person with the necessary interest to seek the relief that he does in respect of s 23. Due to the applicant’s relationships with the respondent and D having a negative impact on their respective relationships with B, it further followed that allowing the applicant to obtain legal rights in terms of Part A of the application is not in the best interest of the child, or both children in this case. The court, therefore, dismissed Part A of the application for care and contact of B…”

[1] 2020 (8) BCLR 1015 (2020 (6) SA 199) (ECG)

[2] Centre for Child Law v Director General: Department of Home Affairs and Others?2022?(4) BCLR 478 (CC)

[3] see Ex Parte Insel and Another 1952 (1) SA 71 (T); Carelse v Estate de Vries (1906) SC 532; Goldman NO v Executor Estate Goldman 1937 WLD 64; Ex Parte Insel and Another 1952 (1) SA 71 (T); Lloyd v Menzies, NO and Others 1956 (2) SA 97 (N)).

[4]See Voet (Percival Gane edition of 1829, vol 4 (Durban: Butterworths & Co 1956) 363-364

[5]1977 (3) SA 502 (E) at 510

[6]2004 (2) SA 56 (C)

[7]2011 (3) SA 126 (SCA)

[8](556/2021) [2022] ZASCA 113 (21 July 2022)

[9] unreported case no 32200/2020, 14-4-2021

[10] (Unreported case no 45327/2021, 18-3-2022) (Fisher J).