Children born out of wedlock – The issue of whose surname the minor child should have

advice-child-maintenance-child-custody-divorce

Children born out of wedlock – let us have a look at the law when it comes to their surname, and changes to it. In the ideal world, a couple falls in love, gets married, and then bring a child into this world. However, since the beginning of time, this was not always the case. History has many stories of children who were born out of wedlock. This is more prevalent this modern day as many couples decide to start a family, without nuptials. Then there is the other extreme where a child is conceived through a brief encounter and then the parties continue with their own paths in life. The law and society also treat children born out of wedlock differently. This has changed to an extent where neutral terms are being used. Words like “illegitimate” and so on are used to refer to such innocent children whose fate was laid down by their parents. The law and society were so extreme, that even children born from religious marriages, which were not recognised as valid civil marriages were also referred to as “illegitimate”. It is however still shocking that the South African law we refer to later, still uses the term “illegitimate child”. Nonetheless, a beautiful innocent child is born, and then the issue of whose surname he or she should have has arisen. This is what this article addresses. Whose surname should a child born out of wedlock have, according to the law? And further, can such a surname be legally changed later?

 Issues in relation to a surname of  minor children born out of wedlock

This article deals with two issues in relation to a surname of a child born out of wedlock. The first is whose surname a child born out of wedlock should have according to the law? This is an important issue. There are a few scenarios that come to play. One where the parties lived together and planned on having the child and intend to marry or live together indefinitely. In such a case, maybe the child should have the father’s surname. Then there is the other situation, where the mother and the father of the child had a short intimate relationship, and he wants the child to have his surname. This could be complicated as he may never form part of the child’s life but wants the child to have his surname. This we refer to as an ego or vanity reason. And the second issue this article deals with is what the law says regarding a change to the surname of a child born out of wedlock. This is also an important issue as, sometimes, the father of a child born out of wedlock is the one who cares for the child and invests most of his life in the child. Situations can arise where it would be expedient for him to have primary care over the child and for the child to have his surname. We will look at this issue in more detail below. Now let us look at the law.

Births and Deaths Registration Act 51 of 1992

advice-child-maintenance-child-custody-divorce

When it comes to issues of name, surname, details of the father on the birth certificate and so on, we refer to the Births and Deaths Registration Act 51 of 1992. What this Act says, is that within 7 (seven) days of the birth of the child born out of wedlock, or any child for that matter, notice of his or her birth must be given to the Department of Home Affairs in the prescribed manner. It further says that if the parents are married, then the child would have the father’s surname. However, that is not the case for children born out of wedlock as you will see later. The Births and Deaths Registration Act 51 of 1992 unfortunately still uses the term “illegitimate child”. But let’s have a look at it anyway.

Section 10 of the Births and Deaths Registration Act 51 of 1992

Section 10 of the Births and Deaths Registration Act 51 of 1992 is entitled “Notice of birth of illegitimate child”. It states the following: “10. (1) Notice of birth of an illegitimate child shall be given – (a) under the surname of the mother; or (b) at the joint request of the mother and of the person who in the presence of the person to whom the notice of birth was given acknowledges himself in writing to be the father of the child and enters the prescribed particulars regarding himself upon the notice of birth, under the surname of the person who has so acknowledged. (2) Notwithstanding the provisions of subsection (1), the notice of birth may be given under the surname of the mother if the person mentioned in subsection 5 (1 )(b), with the consent of the mother, acknowledges himself in writing to be the father of the child and enters particulars regarding himself upon the notice of birth.”

Explanation of section 10 of the Births and Deaths Registration Act 51 of 1992

Section 10 says that if the child was born out of wedlock, he or she should have the surname of the mother. However, if both the mother and father agree, then the child can have the surname of the father. Now, this is what the law says, and what would probably happen in life should the mother and father be on good terms when the child’s name is registered. However, what can the father do if later he wants the child to have his surname? In that case, we have to look at a different section of the Births and Deaths Registration Act 51 of 1992. And that is section 25 of the Act.

Section 25 of the Births and Deaths Registration Act 51 of 1992

advice-child-maintenance-child-custody-divorce

Section 25 of the Births and Deaths Registration Act 51 of 1992 deals with the alteration of the surname of a minor. Unfortunately, in that section, the word “illegitimate minor” is still used. The sections state the following: “25. (1) When- (a) the birth of any illegitimate minor has been registered and the mother of that minor marries any person other than the natural father of the minor; (b) the father of any minor is deceased or his parents’ marriage has been dissolved and his mother remarries or his mother as a widow or divorcee resumes a surname which she bore at any prior time; (c) the birth of any illegitimate minor has been registered under the surname of his natural father; or (d) a minor is in the care of a guardian, his mother or his guardian, as the case may be, may apply to the Director-General for the alteration of his surname to the surname of his mother, or the surname which his mother has resumed, or the surname of his guardian, as the case may be, and the Director-General may alter the registration of birth of that minor accordingly in the prescribed manner: Provided that the man who married the mother of a minor mentioned in paragraph (a) or (b), shall grant written consent for the alteration. (2) Any parent or any guardian of a minor whose birth has been included under a specific surname in the population register, may on the strength of a reason not mentioned in subsection (1), apply to the Director-General for the alteration of the surname of the minor under which his birth was registered, and the Director-General may, on submission of a good and sufficient reason given for the contemplated alteration of the surname, alter the said original surname accordingly in the prescribed manner. (3) For the purposes of this section “guardian” includes any person who has in law or in fact the custody or control of a minor.”

Explanation of Section 25(1) of the Births and Deaths Registration Act 51 of 1992

Section 25 (1) provides for the situation where the minor can have his or her surname change. Most of the reasons mentioned sound logical. However, what happens in the case of a father wanting to change the child’s surname to his surname and the child was born out of wedlock? Well, in that case, section 25 (2) comes with an answer.

Section 25 (2) of the Births and Deaths Registration Act 51 of 1992

advice-child-maintenance-child-custody-divorce

According to section 25(2), the father of the illegitimate child can make an application to the Director-General of the Department of Home Affairs for the change of the minor child’s surname born out of wedlock. However, if the mother is still alive, both parents must consent to the application. If, however, the mother does not consent to it, the father would have to make an application to the High Court to dispense with the mother’s consent and for the Director-General to apply their mind without the consent of the mother.

Court Application in relation to a surname of a child born out of wedlock

Should there be an application to Court, as just mentioned, the Court would have to look at what is in the best interests of the minor child. Various factors would be looked at. It is however suggested that ego reasons should not be the justification for making the application. In other words, the father wants the child to have his surname solely due to him being the father, even though the mother cares for the minor child.  
Posted on by Telelaw

Children born out of wedlock – The issue of whose surname the minor child should have

advice-child-maintenance-child-custody-divorce

Children born out of wedlock – let us have a look at the law when it comes to their surname, and changes to it. In the ideal world, a couple falls in love, gets married, and then bring a child into this world. However, since the beginning of time, this was not always the case. History has many stories of children who were born out of wedlock. This is more prevalent this modern day as many couples decide to start a family, without nuptials. Then there is the other extreme where a child is conceived through a brief encounter and then the parties continue with their own paths in life.

The law and society also treat children born out of wedlock differently. This has changed to an extent where neutral terms are being used. Words like “illegitimate” and so on are used to refer to such innocent children whose fate was laid down by their parents. The law and society were so extreme, that even children born from religious marriages, which were not recognised as valid civil marriages were also referred to as “illegitimate”. It is however still shocking that the South African law we refer to later, still uses the term “illegitimate child”.

Nonetheless, a beautiful innocent child is born, and then the issue of whose surname he or she should have has arisen. This is what this article addresses. Whose surname should a child born out of wedlock have, according to the law? And further, can such a surname be legally changed later?

 Issues in relation to a surname of  minor children born out of wedlock

This article deals with two issues in relation to a surname of a child born out of wedlock. The first is whose surname a child born out of wedlock should have according to the law? This is an important issue. There are a few scenarios that come to play. One where the parties lived together and planned on having the child and intend to marry or live together indefinitely. In such a case, maybe the child should have the father’s surname.

Then there is the other situation, where the mother and the father of the child had a short intimate relationship, and he wants the child to have his surname. This could be complicated as he may never form part of the child’s life but wants the child to have his surname. This we refer to as an ego or vanity reason.

And the second issue this article deals with is what the law says regarding a change to the surname of a child born out of wedlock. This is also an important issue as, sometimes, the father of a child born out of wedlock is the one who cares for the child and invests most of his life in the child. Situations can arise where it would be expedient for him to have primary care over the child and for the child to have his surname. We will look at this issue in more detail below. Now let us look at the law.

Births and Deaths Registration Act 51 of 1992

advice-child-maintenance-child-custody-divorce

When it comes to issues of name, surname, details of the father on the birth certificate and so on, we refer to the Births and Deaths Registration Act 51 of 1992. What this Act says, is that within 7 (seven) days of the birth of the child born out of wedlock, or any child for that matter, notice of his or her birth must be given to the Department of Home Affairs in the prescribed manner. It further says that if the parents are married, then the child would have the father’s surname. However, that is not the case for children born out of wedlock as you will see later.

The Births and Deaths Registration Act 51 of 1992 unfortunately still uses the term “illegitimate child”. But let’s have a look at it anyway.

Section 10 of the Births and Deaths Registration Act 51 of 1992

Section 10 of the Births and Deaths Registration Act 51 of 1992 is entitled “Notice of birth of illegitimate child”. It states the following:
“10. (1) Notice of birth of an illegitimate child shall be given –
(a) under the surname of the mother; or
(b) at the joint request of the mother and of the person who in the presence of the person to whom the notice of birth was given acknowledges himself in writing to be the father of the child and enters the prescribed particulars regarding himself upon the notice of birth, under the surname of the person who has so acknowledged.
(2) Notwithstanding the provisions of subsection (1), the notice of birth may be given under the surname of the mother if the person mentioned in subsection 5 (1 )(b), with the consent of the mother, acknowledges himself in writing to be the father of the child and enters particulars regarding himself upon the notice of birth.”

Explanation of section 10 of the Births and Deaths Registration Act 51 of 1992

Section 10 says that if the child was born out of wedlock, he or she should have the surname of the mother. However, if both the mother and father agree, then the child can have the surname of the father. Now, this is what the law says, and what would probably happen in life should the mother and father be on good terms when the child’s name is registered. However, what can the father do if later he wants the child to have his surname? In that case, we have to look at a different section of the Births and Deaths Registration Act 51 of 1992. And that is section 25 of the Act.

Section 25 of the Births and Deaths Registration Act 51 of 1992

advice-child-maintenance-child-custody-divorce

Section 25 of the Births and Deaths Registration Act 51 of 1992 deals with the alteration of the surname of a minor. Unfortunately, in that section, the word “illegitimate minor” is still used. The sections state the following:

“25. (1) When-
(a) the birth of any illegitimate minor has been registered and the mother of that minor marries any person other than the natural father of the minor;
(b) the father of any minor is deceased or his parents’ marriage has been dissolved and his mother remarries or his mother as a widow or divorcee resumes a surname which she bore at any prior time;
(c) the birth of any illegitimate minor has been registered under the surname of his natural father; or
(d) a minor is in the care of a guardian,

his mother or his guardian, as the case may be, may apply to the Director-General for the alteration of his surname to the surname of his mother, or the surname which his mother has resumed, or the surname of his guardian, as the case may be, and the Director-General may alter the registration of birth of that minor accordingly in the prescribed manner: Provided that the man who married the mother of a minor mentioned in paragraph (a) or (b), shall grant written consent for the alteration.
(2) Any parent or any guardian of a minor whose birth has been included under a specific surname in the population register, may on the strength of a reason not mentioned in subsection (1), apply to the Director-General for the alteration of the surname of the minor under which his birth was registered, and the Director-General may, on submission of a good and sufficient reason given for the contemplated alteration of the surname, alter the said original surname accordingly in the prescribed manner.
(3) For the purposes of this section “guardian” includes any person who has in law or in fact the custody or control of a minor.”

Explanation of Section 25(1) of the Births and Deaths Registration Act 51 of 1992

Section 25 (1) provides for the situation where the minor can have his or her surname change. Most of the reasons mentioned sound logical. However, what happens in the case of a father wanting to change the child’s surname to his surname and the child was born out of wedlock? Well, in that case, section 25 (2) comes with an answer.

Section 25 (2) of the Births and Deaths Registration Act 51 of 1992

advice-child-maintenance-child-custody-divorce

According to section 25(2), the father of the illegitimate child can make an application to the Director-General of the Department of Home Affairs for the change of the minor child’s surname born out of wedlock. However, if the mother is still alive, both parents must consent to the application. If, however, the mother does not consent to it, the father would have to make an application to the High Court to dispense with the mother’s consent and for the Director-General to apply their mind without the consent of the mother.

Court Application in relation to a surname of a child born out of wedlock

Should there be an application to Court, as just mentioned, the Court would have to look at what is in the best interests of the minor child. Various factors would be looked at. It is however suggested that ego reasons should not be the justification for making the application. In other words, the father wants the child to have his surname solely due to him being the father, even though the mother cares for the minor child.

 

Related Post

Best advice on finding a top divorce lawyer for your divorce case in Somerset West, Cape Town

Do you live in Somerset West, and are you considering divorcing your spouse? Or have you been threatened with divorce? Either way, a divorce is a legal matter, and it is best to find sound legal advice or assistance. Furthermore, divorcing someone has potential severe legal consequences you may not know of. The first consequence, of course, is that you are no longer married to your former spouse, and there is no legal obligation to maintain each other (unless you qualify for alimony). You may also not inherit from your former spouse’s intestate. Lastly, and obviously, you are free to marry someone else. However, do you know of the proprietary (property) consequences of getting a divorce? What about the assets and debt you and your spouse incurred in Somerset West or elsewhere during your marriage? Do you know what should happen to it? If not, it is best you find out about these critical aspects and others before getting divorced. Then there is the issue of parental responsibilities and rights after the divorce should there be minor children involved. This article aims to provide guidance on finding the best attorney or advocate for your divorce matter that can adequately and properly advise you or handle your divorce. The advice would apply whether you live in Somerset West or anywhere else in South Africa. The issues we shall deal with are the following.
  • Gender of the Advocate or attorney;
  • Location of the Advocate or attorney;
  • Experience of the Advocate or attorney;
  • Costs of the Advocate or Attorney; and
  • The personality of the Advocate or Attorney.

What is the best gender of the Advocate or Attorney I need to use for my divorce? Is a male or female better?

Generally, the gender of your Advocate or Attorney should not play a role at all in a legal matter. However, depending on your background and the issues involved in your divorce, you may prefer a specific gender where you may feel more comfortable. A female who has been emotionally, physically and psychologically abused may be more comfortable with a female Attorney or Advocate. However, the same female client may prefer a male Advocate or Attorney. No more will be said on this issue.

What is the ideal office location of the Advocate or attorney? Does it have to be in Somerset West?

The location or office of your attorney or Advocate is essential if you wish to consult with them in person. It is also ideal, but not necessary, for their offices to be close to the Court where the divorce would be handled. However, many lawyers make use of correspondent lawyers for this purpose. Furthermore, location should not be an issue if you want a specific lawyer to handle your case. This is so especially seeing that people are making use of virtual meetings.

What level of experience should the Advocate or attorney have?

It is important to remember that not all legal matters require the best lawyer. If your divorce is straightforward, finding the best lawyer in the field is unnecessary. The best may be very busy and lack the time to give your case the attention it deserves. However, if your matter is complicated, then in that case, the most experienced and best lawyer out there is not warranted.

What about the Costs of an Attorney or Advocate?

For many, the costs of the Attorney or Advocate are the most crucial consideration when it comes to enlisting their services. Usually, the more experienced the Attorney or Advocate, the more they would charge. Another aspect that affects costs is the nature of the expertise of the Advocate or Attorney. If the issues in your matter are highly technical and complicated, an Advocate or Attorney with expertise and experience may charge more.

What about the personality of the Advocate or Attorney?

Many may discard the Advocate or Attorney’s personality as not important. However, it is essential to note that it may be time to change lawyers if you do not get along well with the Advocate or Attorney because of their personality. A lawyer and their client would develop a professional relationship in family law matters. This is especially so when the lawyer must discuss many personal issues regarding you, your marriage, children, finance, spouse etc. If you cannot get along well with your Attorney or Advocate, you may not divulge important information relevant to your case.

What is our best advice to a client looking for an Advocate or Attorney in a divorce matter?

Considering all the factors mentioned above, before enlisting the services of an Advocate or Attorney, ensure you enlist the right one. Do not look for the most experience or best, or the top one in family law. You may have to change lawyers if you do so and cannot afford legal bills. Therefore consider the above and any other factors that you may consider necessary when deciding on enlisting the services of an Advocate or an Attorney. Best of luck.

Posted on by Telelaw

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