Father’s rights are an important element in any society, and they need to be protected by the country’s laws and regulations. Luckily, the South African Constitution promotes equality and prohibits discrimination on various grounds, including gender. This means that fathers have the right to be treated equally and fairly in matters relating to parental rights and responsibilities. Although family law has made considerable strides over the years, the question remains whether the rights of unmarried biological fathers are adequately guarded in South Africa.
George Pelser, Head of Legal Research at legal expenses insurance provider, LegalWise, comments: “Historically, societal norms have been focused on mothers’ rights, while fathers were expected to be the primary breadwinner. However, over the last few decades, things have changed quite dramatically, and today’s laws recognise and help protect fathers’ rights. This helps challenge traditional gender roles and promotes the idea that both parents should have equal opportunities to be involved in their children lives.”
Rights of fathers
According to the Children’s Act 38 of 2005, full parental rights in South Africa include:
- Caring: The right to live with a child and supervise their daily life.
- Contact: Maintaining a personal relationship with a child and allowing a person to see, spend time and communicate with a child.
- Guardianship: Protecting a child’s property interests and representing them in all legal matters. It also entails giving consent to a child’s marriage, adoption, passport application, and removal from South Africa
- Maintenance: Financially supporting a child by providing for their basic necessities, including food, clothing, accommodation, education, and medical care.
These rights are automatically given to biological fathers who are married to the mother of the child at the time of birth. This will apply even after a divorce, unless stipulated by a court. However, George says that the same does not apply to unmarried biological fathers: “Unfortunately, unmarried biological fathers do not get these rights bestowed on them automatically. The duty to maintain his child is the only parental responsibility that automatically clings to the unmarried father, regardless of circumstance.”
How can unmarried fathers obtain parental rights?
Having legal rights allows fathers to actively participate in their children’s lives – allowing them to make important decisions and contribute to their upbringing and wellbeing. The lack of automatically bestowed parental rights for unmarried fathers is especially problematic in a country where, according to Statistics South Africa, in 2020 more than 60% of births were registered without the details of the fathers listed. If an amicable agreement can’t be achieved between the mother and the father, unmarried fathers can obtain legal parental rights in the following circumstances:
- If he was living with the child’s mother at the time of the child’s birth.
- If he consents or applies to be identified as the child’s father, or pays damages in terms of customary law.
- If he contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period.
- If he contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.
When applying for parental rights, George advises that the court will consider a variety of factors: “The court’s first consideration lies with the best interest of the child. It will also consider the relationship between the child and each parent, the ability of each parent to provide for the child’s physical and emotional needs, and any other relevant circumstances, such as a history of violence or substance abuse for example.” 
He says that while the court’s objective is to treat fathers and mothers equally, individual cases may vary, and the specific circumstances and evidence presented in each case can influence the court’s decisions: “Each case is unique, and the specific circumstances will be taken into account when determining parental rights and responsibilities.”
If you require legal advice or assistance regarding father’s rights in South Africa, it’s advisable to consult with a family law attorney who can provide guidance based on your specific situation.
Naming rights of unmarried fathers
In March 2022, unmarried fathers were granted the right to register their biological children under their surname, which is a significant victory over unfair discrimination for unmarried fathers. Prior to this ruling, the Constitutional Court’s judgment, section 10 of the Births and Deaths Registration Act 51 of 1992 (“Births Act”) specifically dealt with the registration of children born out of wedlock. This section expressly provided that, as a general rule, a child born out of wedlock must be registered under the surname of the mother and may only be registered under the father’s name at the joint request of the mother alongside the father. Simply put, this meant that an unmarried father would need the consent of the mother to register the child under his surname. So in instances where a mother refused (even unreasonably) or was unavailable to give consent, a child born out of wedlock could not be registered under the father’s name.
In its judgment, the Constitutional Court confirmed that section 10 of the Births Act does limit the ability of unmarried fathers to register children under their surname and that there is no justification for the different provisions to be applied to unmarried fathers. The Constitutional Court subsequently declared section 10 of the Births Act unconstitutional. One of the reasons for declaring this section unconstitutional was because it amounts to unfair discrimination (right to equality) on the basis of marital status, sex and gender.
Today, under the new ruling, unmarried fathers can register their children under their surnames, with or without the consent of the mother – a clear win for the development and promotion of human rights.
Read more about parental rights and responsibilities
