By Hannah Mower
We will look into the circumstances where a child was born between the parents, and registered under the mother ‘surname, and it happens that the mother has since passed, and the father seeks to change the child ‘surname to his.
Legal Framework and Relevant Legislation:
The primary legislation governing this area is the Births and Deaths Registration Act 51 of 1992 (as amended). This Act outlines the procedures for registering births, including the information required and the documentation needed.
The Children’s Act 38 of 2005 is also crucial, as it defines parental responsibilities and rights, and addresses the rights of unmarried fathers. Furthermore, the Alteration of Sex Description and Sex Status Act 49 of 2003 may be relevant in specific cases, although it is less directly applicable to the core issue of surname changes.
Parental Rights and Responsibilities of Unmarried Fathers:
The Children’s Act significantly reformed the legal landscape regarding parental rights. Section 21 of the Act addresses the acquisition of parental responsibilities and rights by unmarried fathers. An unmarried father automatically acquires full parental responsibilities and rights if he:
– Is married to the child’s mother at the time of the child’s birth.
– Was married to the child’s mother at any time between the child’s conception and birth.
– Is identified as the child’s father in the birth registration.
– Consents to be identified as the child’s father in the birth registration.
– Has been contributing to the child’s maintenance.
– Has been involved in the child’s upbringing.
If the father does not meet these criteria, he can still apply to the court for parental responsibilities and rights. The court will consider the best interests of the child when making its decision.
Registration of Birth and Surname:
The Births and Deaths Registration Act mandate the registration of all births. When a child is born to unmarried parents, the mother typically has the primary responsibility for registering the birth. The father’s details can be included if he acknowledges paternity.
If the child’s birth was not registered with the father’s surname, and the mother is deceased, the father will likely need a court order to change the child’s surname. The DHA’s requirement for a court order is standard practice in such situations, as it ensures that any changes to a child’s official records are made with due process and in the child’s best interests.
The Court Order Process:
To obtain a court order, the father must typically:
Lodge an application:
File an application with the relevant High Court or, in some cases, the Children’s Court.
Provide Supporting Documentation: This includes the child’s birth certificate (if available), the mother’s death certificate, proof of the father’s identity, and any evidence demonstrating his involvement in the child’s life (e.g., photos, school records, medical records, proof of financial support).
Draft an Affidavit: Prepare an affidavit explaining the circumstances, the reasons for the surname change, and why it is in the child’s best interests.
Serve the Application: Serve the application on any other relevant parties, such as the child’s guardian (if applicable).
Attend the Hearing: Attend the court hearing, where the judge will consider the evidence and make a decision based on the child’s best interests.
The court will consider factors such as the child’s age, the father’s relationship with the child, the child’s wishes (if the child is old enough to express them), and any potential impact of the surname change on the child’s well-being.
If the court is satisfied that the surname change is in the child’s best interests, it will issue an order authorizing the change. The father can then take this order to the DHA to update the child’s birth certificate and other official records.
For more information and assistance, please do not hesitate to contact our offices.
