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Summary The effect of children born out of wedlock on a person's status
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THE EFFECT OF BIRTH OUT OF WEDLOCK ON A PERSON’S STATUS Legitimate vs. Children Born Out of Wedlock
In South African law a child is regarded as legitimate if any one of the
following categories applies:
1. If the biological parents are married to each other at the time of his
conception or at his birth or at any time between his conception and
his birth
2. If the child is born of the putative (reputed, supposed) marriage. A
“putative marriage” is a void marriage in as much as one or both
parties involved are unaware, at the time of the conclusion of the
marriage, of a flaw that invalidates their marriage but believe in good
faith that they are legally married
3. If the biological parents of the child marry each other after the birth
of the child. Common law: legitimatio per matrimonium subsequens.
This principle is subject to several conditions:
3.1 Biological parents had to be in a position to marry each other (not
a third party) at the time of conception
E.g. Adultery: Previously, in terms of common-law, it was
considered an offence and the parties involved were forbidden to
marry each other at any time in the future.
Incest: irrespective of whether the parents marry, such a child will
not be legitimised due to persons that are related to each other
within a certain degree cannot legally marry
3.2 The marriage must be legal
Children’s Status Act 82 of 1987, s4: further stipulates that date from
which the child is legalised, will be the date of marriage between his
natural parents
4. Children’s Status Act, s6: a child conceived / born of a voidable
marriage will retain his legitimate status when the marriage is
annulled.
5. Adoption also means that the adopted child is legally considered the
legitimate child of the adopting parents (Child Care Act 74 of 1983,
s20(2))
6. Children conceived by artificial insemination should have
legitimate status in South African law. Children’s Status Act, s5
specifically regulates this.
Children’s Status Act, s5(3): “Artificial insemination”:
a) The introduction by other than natural means of a male gamete/s
into the internal reproductive organs of that woman, or
b) The placing of the product of a union of a male and female
gametes/s which have been brought together outside the human
body in the womb of the woman (surrogacy could be included
here)
For the purposes of human reproduction
- Differentiation is made between AIH (gametes of the husband, i.e.
the mother’s spouse) and AID children (gametes of the third-party /
donor)
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