34 Unit 5 Extra-Marital Children

Unit 5

Extra-Marital Children

1. Extra-marital children
These are children whose parents were not married to each other at the
time of conception, birth or at any intervening time.47 A distinction must
be made between three traditional extra-marital children:

1. Natural Children
These are children born of unmarried parents who could validly have
married each other.

2. Adulterine Children
These are children born while one or both of the parents were married to
someone else.

3. Incestuous Children
These are born of parents who could not have married each other at the
time of conception because they were too closely related.

2. Proof of Parentage
Where the mother is or was married
A child born to or conceived by a married woman is presumed to be
legitimate because the law presumes that the husband is the father. This is
expresses in the maxim pater est quem nuptiae demonstrant. 48 It literally
means that the father is he to whom the marriage points and applies to
children born within the marriage but conceived before its conclusion and
those born after its dissolution but were conceived during the marriage.
Like any presumption, it may be rebutted y acceptable evidence which
shows on a balance of probabilities that the woman’s husband is not in
fact the father of the child. A probability of non-paternity must therefore
be created.

47
Cronje D.S.P, & Heaton, J. (2003). p.45.
48
Boberg P.Q.R. (1977).p.323.
 LAW OF PERSONS

Where the mother is unmarried

This position is regulated by the Children Status Act49 which states that
despite anything to the contrary contained in any law, a rebuttable
presumption that a man is the father of a person whose parentage is in
question exists if;
(a) he was at the approximate time of the conception, or at the time
of the birth, of the person in question, or at any time between
those two points in time, married to the mother of such person;
(b) he cohabited with the mother of the person in question at the
approximate time of conception of such person;
(c) he is registered as the father of the person in question in
accordance with the provisions of the Births, Marriages and
Deaths Registration Act, 1963;50
(d) both he and the mother acknowledge that he is the father of the
person in question; or
(e) he admits or it is otherwise proved that he had sexual intercourse
with the mother of the person in question at any time when such
person could have been conceived.

Corroboration of evidence led to establish a presumption of paternity is

not required and no special cautionary rules of evidence are applicable to
such evidence. 51 In the case of S v J, 52 the Supreme Court of appeal
abolished the cautionary rule in rape and other sexual assault cases on the
grounds that it was based on irrational and outdated perception and
unjustly stereotyped complainants in these cases as particularly
unreliable.

The presumption or allegation that a man is the father of a child can be

rebutted by raising any of the following grounds:53
i. The man can prove that he did not have sexual
intercourse with the child’s mother at any time when
the child could have been conceived. Impotency or
absence from the country at that time could
successfully refute the presumption.

49
No 6 of 2006. Section 9.
50
No 81 of 1963.
51
The cautionary rule requires the court to recognize the inherent danger of relying upon
a complainant’s evidence in respect of a sexual offense and additionally recognize the
need for some safeguard reducing the risk of wrong conviction. Cronje D.S.P, & Heaton,
J. (2003). p.50.
52
1998 (2) SA 984.
53
Cronje D.S.P, & Heaton, J. (2003). p.51-58.

35
36 Unit 5 Extra-Marital Children

ii. Another rebuttal could be based on the period of

gestation. The man could argue that the child was
born outside the normal period of gestation and as
such could not possibly be theirs.
iii. If the man can prove that he is sterile then he can
successfully rebut the presumption of paternity.
iv. The man can through the exceptio plurium
concubentium admit that he had sexual relations with
the woman at the time of the child could possibly
have been conceived but proves that the woman also
has sex with another man or other men during that
same period. This will create a situation where the
father of the child is then unknown. When it comes
to the issue of maintenance the court will absolve all
the men involved, or hold them all accountable or
thirdly, hold the man pointed out by the mother
another he can prove sterility.
v. The father can in addition to other factors also rely
on the absence of similarities between his physical
features and those of the child.
vi. The use of blood and tissue tests can also be used to
rebut the presumption of paternity. Courts have taken
different approaches as to whether a reluctant mother
can be compelled to submit herself or her child for a
paternity test, the whole argument standing on
constitutional right to privacy. The consensus seems
to be that an infringement of the right to privacy
would be justified it were in the interests of the child
to determine paternity by ordering someone to
submit to tests.

3.The Status of the Extra-marital Child

This position is governed by the Children Status Act 6 of 2006:

Custody54
Both parents of a child born outside marriage have equal rights to become
the custodian of the child. One parent must be the primary custodian of
the child and both parents may agree on who should be the primary
custodian of the child, and that agreement may be verbal or in writing.
Where there is no agreement as to who should be the primary custodian
of a child, either of the parents or any of the persons referred to under
Section 12 may, in the manner set out in that section, make an application
to the children's court for the appointment of a primary custodian. if the
parents of a child cannot agree as to who should have primary custody of

54
Section 11 of the Children Status Act 6 of 2006
 LAW OF PERSONS

the child, and there is a possibility that the best interests of the child may
be compromised or prejudiced, the person who has physical custody of
the child may, in the prescribed form and manner, make an ex parte
application to court for an interim order of custody of the child.

On receiving an application made in terms of subsection (4) the court

may grant the interim order to the applicant or to any other person, taking
into account the best interests of the child. An interim order granted in
terms of subsection (5) has immediate effect and it must, in the prescribed
form and manner, be served on the other party and the other party is
entitled, in the prescribed form and manner, to respond to the application.
On receipt of a response made in terms of subsection (6) the court must,
in the prescribed manner, hear and determine the matter and make any
order which is appropriate in the circumstances having regard to the best
interests of the child.
Act also sets out the procedure for obtaining custody in Section 12.55
Guardianship56
A person with custody of a child will also be the guardian of that child,
unless a competent court, on application made to it, directs otherwise. If a
parent is a minor, guardianship of such parent's child does, unless a
competent court directs otherwise, vest in the guardian of such parent.

55
The following persons may seek an order pertaining to custody of a child born outside
marriage, provided that such a proceeding are brought by or on behalf of the person who
is seeking custody of the child:
the father, regardless of whether he is a major or a minor;
the mother, regardless of whether she is a major or a minor;
someone, other than the mother or father of the child, who is acting as the primary
caretaker of the child; or
a person authorised in writing by the Minister to act on behalf of the child.
A person who seeks a court order in terms of subsection (1) must make an application in
the prescribed form and manner and the children's court must consider the application in
the presence of the applicant or his or her authorised legal representative.
An order for custody in terms of this section may only be made after the prescribed
attempts have been made to notify the child's parents, the child's primary caretaker and
any other person or persons with custody or guardianship of the child immediately prior to
the application, and that person has or those persons have been given an opportunity to be
heard.
In the course of an application for custody, the children's court may institute any
investigation that it deems necessary and order any person to appear before it, and may
order one or more of the parents to pay the costs of such investigation or appearance.
Any order made in terms of this section may be varied or withdrawn by the children's
court on application by any of the parties listed in subsection (1) and subsections (2), (3)
and (4) apply to any application for variation or withdrawal.

56
Section 13 of the Children Status Act 6 of 2006.

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The following persons may seek a court order granting sole guardianship
to one parent, or to some other person:
(a) either parent;
(b) the child;
(c) someone, other than the mother or father of the child, who is
acting as the primary caretaker of the child; or
(d) a person authorised in writing by the Minister to act on behalf of
the child.
A person who seeks a court order in terms of subsection (1) or (3) must
make an application in the prescribed form and manner and the court
must consider the application in the presence of the applicant or his or her
authorised legal representative. An order for guardianship in terms of
this section may only be made after the prescribed attempts have been
made to notify the child's parents, the child's primary caretaker and any
other person or persons with custody or guardianship of the child
immediately prior to the application, and that person has or those persons
have been given an opportunity to be heard. In the course of an
application for guardianship, the court may institute any investigation that
it deems necessary and order any person to appear before it, and may
order one or more of the parents to pay the costs of such investigation or
appearance.

Access57
The non-custodian parent of a child born outside marriage has a right of
reasonable access to such child unless a competent court, on application
made to it, directs otherwise, but the right accrues only where the parent
in question has voluntarily acknowledged parentage of the child.
The right of access referred to in this section does not give the non-
custodian parent the right to remove the child from the custodian parent's
home or from any other place where the child resides without the consent
of the custodian parent. Any access by the non-custodian parent is subject
to the reasonable control of the custodian parent, or any other person who
has been entrusted by the custodian parent with responsibility for the care
and control of the child.
The following persons may seek a court order restricting or denying
access to the non-custodian parent of a child born outside marriage:
(a) the parent or other person who has custody of the child;
(b) the child;
(c) anyone, other than the mother or father of the child, who is acting
as the primary caretaker of the child; or
(d) a person authorised in writing by the Minister to act on behalf of
the child.
A person who seeks a court order restricting or denying access to the
noncustodian parent of a child must make an application in the prescribed

57
Section 14 of the Children Status Act 6 of 2006.
 LAW OF PERSONS

form and manner and the children's court must consider the application in
the presence of the applicant or his or her authorised legal representative.
An order applied for in terms of subsection (5) may only be made after
the prescribed attempts have been made to notify the child's parents, the
child's primary caretaker and any other person or persons with custody or
guardianship of the child immediately prior to the application, and that
person has or those persons have been given an opportunity to be heard.
A non-custodian parent who has not voluntarily acknowledged parentage
of a child born outside marriage may, in the prescribed form and manner,
apply to the children's court for an order granting a right of reasonable
access to that child, and the custodian parent or any other person who has
custody of the child must be made a party to the proceedings.

Perpetrators of rape which results in the conception of a child outside

marriage have no rights to custody, guardianship or access in terms of
this Act, unless a competent court, on application made to it, orders
otherwise.58
Inheritance59
Despite anything to the contrary contained in any statute, common law or
customary law, a person born outside marriage must, for purposes of
inheritance, either intestate or by testamentary disposition, be treated in
the same manner as a person born inside marriage. It must be presumed
that the words "children" or "issue" or any similar term used in a
testamentary disposition, apply equally to persons born outside marriage
and children born inside marriage, unless there is clear evidence of a
contrary intention on the part of the testator.

Duty to maintain60
A distinction may not be made between a person born outside marriage
and a person born inside marriage in respect of the legal duty to maintain
a child or any other person.

Domicile61
A child born outside of marriage is deemed to be domiciled at the place
or in the country with which he or she has the closest connection.

58
Section 15 of the Children Status Act 6 of 2006
59
Section 16 of the Children Status Act 6 of 2006
60
Section 17 of the Children Status Act 6 of 2006
61
Section 18 of the Children Status Act 6 of 2006

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40 Unit 5 Extra-Marital Children

4.Legitimization of Extra-Marital Children

Any child born of parents who marry each other at any time after the
child's birth must be treated as a child born inside marriage in all respects
as from the date of birth, regardless of whether the parents could not have
legally married each other at the time of the child's conception or birth.62

Unit summary
In this unit you learned what extra-marital children are, the different types
of extra-marital children. You also learned that the father of a child can
be determined by the application of certain factors both when the mother
is married and when she is not. You also learned that the Children Status
Summary Act establishes the status of extra-marital children with regrads to
different areas, i.e. inheritence, and that it further provides for the
legitimizatio of extra-marital children.

References
 Cronje D.S.P, & Heaton, J. (2003). The South African Law of Persons
2nd ed. LexisNexis Butterworths: Durban,p.45-58

Children Status Act 6 of 2006

S v J 1998 (2) SA 984

62
Section 19 of the Children Status Act 6 of 2006.