The short answer
It is up to the mother whether she wants the child to have her name or the father's name
The whole question
I am not a South African citizen. I was in a relationship with a South African girl and last year I found out that she had our baby. I am now married to someone else. Is it possible for me to give my name to the baby?
The long answer
All children born in South Africa must have their births registered within 30 days of being born in terms of the Births and Deaths Registration Act of 1992. Form B1-24 is filled in at the Department of Home Affairs, and the mother/parent/guardian must bring their ID.
Section 10 of the Births and Deaths Act deals specifically with registering a child born to unmarried parents. The baby will be given the mother’s name on the unabridged birth certificate, unless both parents agree that the father’s name can be given and the father gives his consent in writing.
It is up to the mother whether she wants the child to take her name or the father’s name, but if she decides that the child can take the father’s name and later changes her mind, she will need both the father’s and Home Affairs’ permission to change it.
In terms of section 25(1) of the Births and Deaths Registration Act, a mother or guardian can apply to the Director-General (DG) to change a child’s surname. If the DG refuses the application, the person applying can ask the High Court to review the decision. The courts have shown that they will reverse the DG’s decision if good reasons are provided and the court finds that it is in the child’s best interests.
In terms of Section 25(2), the biological father can also apply to the DG to have the child’s surname changed if he can provide “good and sufficient” reasons. The DG has the power to grant an application. But if the DG refuses, the father can also apply to the court to review the decision. Again, the court must make a decision based on the best interests of the child.
If the baby’s birth was not registered within 30 days, but it is not yet one year, the same Form B1-24 must be filled in at Home Affairs plus written reasons for why the baby was not registered within 30 days. This is where you would need to give your written consent for the baby to take your name and the mother would have to agree to it. This application would be sent to the Home Affairs head office to obtain an identity number and for archiving.
Wishing you the best,
Answered on Jan. 26, 2021, 1 p.m.
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