• David Thomson

What are your rights and obligations as a single parent?


According to the Mbalo Brief by Stats SA, most South African children are raised in single-parent families. With the rising costs of living and education, being solely responsible for all of the costs required to care for a child is no doubt a significant weight on the shoulders of a single parent.


In light of this, it’s imperative that single parents are familiar with their rights, especially regarding maintenance payments. David Thomson, Senior Legal Adviser for Sanlam Trust, answers some key questions:


Do single and married parents have the same rights?


Single parents have all the obligations that parents in partnerships have, which apply until the child is 18. These obligations, as stated in the Children’s Act of 2005, include meeting the child’s entitlement to the equal care and support of both parents. These responsibilities can however be excluded by the court if a parent is found to be unfit, abusive or damaging to the child.


In line with these, a single mother has the right to the custody of her child, the right to expect cooperation and respect from the child, the right to any income that the child might make, and the right to take legal action against anyone found guilty of unlawfully injuring or ending the life of the child.


The new Children’s Amendment Bill of 2018, seeks to clarify under which circumstances the unmarried father may be entitled to the same parental rights as the mother – and many other issues. Parliament will introduce the Bill for possible ratification this year.


Both parents bear equal responsibility for the child under the law. These responsibilities include supporting and contributing to the overall wellbeing of the child.


What issues are faced by different types of single parents?


Unmarried

As both parents have equal obligations, both are responsible for supporting their child and this includes paying school fees, welfare, maintenance and taking care of any medical expenses. To avoid any misunderstandings or conflict further down the line, parents – whether living together or not – are encouraged to put an agreement in writing covering arrangements regarding their children. Whatever is agreed upon should be in the best interests of the child.


Divorce

Normally, when couples get divorced, they get their lawyers to draw up an agreement which sets out exactly who is going to pay for what. Very often, this extends beyond the child reaching the age of 18. Commonly, both parties commit to paying maintenance and school fees until the child is self-supporting. It’s highly advisable that parents consult lawyers and financial advisers to ensure a fair arrangement, with maintenance payments that increase in line with inflation, for example. The settlement agreement should be made an Order of Court.


Death (we are talking here about single parents and/or divorced parents)


Should one of the parents die, the surviving parent becomes the sole natural guardian and takes full responsibility for the child. This parent can claim against the deceased parent’s estate for child maintenance, but nothing for themselves. However, they will have a claim against the deceased parent’s retirement fund, if the surviving parent was dependent on the deceased for their living expenses. If there’s no will in place, the deceased parent's money and assets will automatically be inherited by their children.


What if a parent won’t pay maintenance?


Failure to pay maintenance is a criminal offence that could result in a fine or imprisonment.


A parent would need to approach the maintenance officer at the local magistrate court and provide the particulars of the defaulting parent, who can then be summoned to appear at the maintenance court to explain why they have not met their obligations. Thereafter, a demand for maintenance payment can be made.


Though a child support order will remain in effect, it is generally plausible for parents who are unemployed to default on payment without legal consequence. But if a parent lies about their income, the courts could subpoena their employer to court and request payroll documentation for examination. If, at a later stage