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Unmarried fathers: when you have rights, and what to do if they are disputed

The two ways an unmarried father gets full parental responsibilities and rights under section 21, what happens when the mother disagrees, and what an agreement can do.

Last updated:
14 November 2026
Checked against the law:
14 November 2026

The short answer

A mother has full parental responsibilities and rights. An unmarried father has them automatically in two cases: he was living with the mother in a permanent life-partnership when the child was born, or he has been identified as the father and has contributed, or tried in good faith to contribute, to the child's upbringing and maintenance for a reasonable period. A dispute about that must go to mediation first.

At a glance

The mother
Full rights, always
Married or not (section 19).
A married father
Full rights
If married to the mother at conception, at birth, or any time between (section 20).
An unmarried father
Full rights in two cases
Section 21, set out below.
Maintenance
Owed either way
Section 21 does not affect a father's duty to contribute to maintenance (section 21(2)).

What "parental responsibilities and rights" means

Four things: to care for the child, to keep contact with the child, to act as the child's guardian, and to contribute to the child's maintenance (section 18(2)).

The two routes in section 21

  • Route 1: you lived together

    Section 21(1)(a)

  • Route 2: you stepped up

    Section 21(1)(b)

Route 2 needs all three

  • You consent to be identified as the father, or successfully apply to be identified, or pay damages under customary law
  • You contribute, or have tried in good faith to contribute, to the child's upbringing for a reasonable period
  • You contribute, or have tried in good faith to contribute, to the child's maintenance for a reasonable period

The Act does not say how long "a reasonable period" is. It applies whether the child was born before or after the Act came into force (section 21(4)).

If the mother disagrees

  1. Mediation comes first

    Who:
    A family advocate, social worker, social service professional or other suitably qualified person
  2. A court can review the outcome

    Who:
    Either of you

If you do not qualify: an agreement

  1. The mother agrees to share

    Who:
    The mother, or another person who holds the rights
  2. It is put in the prescribed form

    Who:
    Both of you
  3. It is registered or made an order

    Who:
    A family advocate, or a court

Only the High Court can confirm, change or end an agreement about guardianship (section 22(7)).

Once you both have rights

  • Day to day

    Section 30

  • Difficulties

    Section 33

  • Contact that an order gives

    Section 35

What goes wrong

  • Assuming a father has no rights because he never married

    Worth checking: the two routes in section 21 against your own facts.

  • Assuming that being named as the father is enough

    Worth checking: all three conditions of route 2, not only the first.

  • Nothing to show for what you contributed

    Worth checking: what record exists of money paid and time spent.

  • Linking contact to maintenance

    Worth checking: that the two are being dealt with separately.

  • An agreement that was signed and put in a drawer

    Worth checking: whether it was registered with the family advocate or made a court order.

What to gather

Useful to have

  • The child's birth certificate
  • Proof of where you were living when the child was born
  • Proof of maintenance paid, or offered: bank transfers, receipts, messages
  • A record of time spent with the child, and of attempts that were refused
  • Any written agreement or court order

What this means for you

Whether an unmarried father has rights depends on facts, not on a form: where he lived when the child was born, and what he has contributed since. The stronger the record of those facts, the shorter any dispute.

Sources

Every legal statement in this guide comes from one of these. We checked each statement against its source. A legal practitioner has not reviewed this guide.

  1. Children's Act 38 of 2005, sections 18 to 22, 30, 33 and 35 (consolidated to 28 May 2025)
  2. Plainly crisis lines

Independent. Not a law firm. Legal information, not legal advice.