In an ideal situation a couple falls in love, gets married and then when a child is born from the marriage things like whose surname the child will have is not an issue.

BUT  in history and also more and more these days we have situations where parties not married either make a decision to start a family without nuptials or in some extreme cases a child is conceived in a brief encounter and then the parties continue with their own lives.

In both situations these children are seen as born out of wedlock and words like “illegitimate” child and so are used to refer to these innocent children who are treated differently no only by society in most cases but also as children born out of wedlock by our laws.

An issue that arise a lot in then is whose surname the minor child should have.

Let’s have a look at the following:

1. Whose surname should a child born out of wedlock have according to law?
2. Can such a surname be legally changed later?

Section 10 of the Births and Deaths Registration Act 51 of 1992 says that if a child was born out of wedlock, he or she should have the surname of the mother. However if both the mother and father agree, then the child can have the surname of the father

Section 25 of the abovementioned act refers to the situation where a father on a later stage wants to have the child’s surname changed to his surname.  The father of the illegitimate child can make an application to the Director General of the Department of Home Affairs for the change of the child’s surname if the mother consents to the application.  If however the mother does not consent to it, the father would have to make an application to the High Court.  The court will have to look at what is in the best interests of the minor child.  Various factors will be taken into consideration, but the moment the court realise that this is an “ego” thing as they refer to it, meaning that he just wants the child to have his surname, because he is the father even though the mother cares for the minor child, the application will definitely not be granted.

Several different situations can occur and therefor it is necessary to discuss and handle each and every situation with the facts of the particular matter taken into consideration.  This is just an overview as to what the law states, for a proper legal evaluation please contact a legal representative who is not emotionally involved and can give objective and correct advice.

References : Births and Deaths Registration Act 51 of 1992