Unmarried Fathers Rights
The Children's Act 38 of 2005 is landmark legislation fashioned to accomplish countless purposes, most importantly is guaranteeing the best interests of the child are safeguarded and dealt with as of vital importance in any matter involving children.
Unmarried fathers have been awarded the right to register their biological children under their surname. This was an important victory for unmarried fathers and follows a recent ruling by the Constitutional Court which examined the constitutionality of the provisions of section 10 of the Births and Deaths Registration Act 51 of 1992 (“Births Act”). The Constitutional Court, in the case of Centre for Child Law v Director General: Department of Home Affairs and Others (2021) ZACC 31, primarily related to how section 10 of the Births Act impacts unmarried fathers' human rights as safeguarded in the Constitution. The Constitutional Court had to determine on the legitimacy of section 10 of the Births Act and whether or not this section amounted to unfair discrimination, impairing the dignity of both unmarried fathers and children conceived out of wedlock. In this case, the Department of Home Affairs declined to register the child under the surname of the unmarried father, as they assumed that the registration will not comply with the provisions of the Births Act.
It was debated before the Constitutional Court that section 10 of the Births Act was unconstitutional as it prohibited unmarried fathers from registering their children's birth under their surname in the absence of the mother or without her consent. Furthermore, the differentiation between children born in or out of wedlock was irrational, and unlawfully discriminated against both the unmarried fathers and children born out of wedlock.
In its judgment, the Constitutional Court confirmed that section 10 of the Births Act does restrict 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 consequently declared section 10 of the Births Act unconstitutional.
One of the reasons for proclaiming this section unconstitutional had been due to the fact that it amounts to unfair discrimination (right to equality) on the basis of marital status, sex and gender. As pointed out above, this section emphasized a distinction in how the law applied to married and unmarried fathers, which leads to discrimination on marital status. Furthermore, the section also demonstrated a difference between mothers and unmarried fathers as mothers do not need to involve the unmarried fathers in the same way. The Constitutional Court mentioned that this preserves the stereotypical assumption that a child's care remains principally with the mother and leads to discrimination founded on sex and gender.
When does a dad have parental rights and responsibilities?
Dads (as with all parents) need to acquire parental rights and responsibilities in order to exercise and fulfil them.
Married Dads:
In terms of section 20 of the Children's Act, a biological father automatically has full parental rights and responsibilities over their child if the dad is married to the child's mom. In addition, a father will gain the same rights and responsibilities if the father was or is:
Unmarried Dads:
Unmarried dads also get full parental rights and responsibilities, in terms of section 21, if they were either living in a permanent life partnership with the child's mother at the time of the child's birth, or if they consent and successfully apply for such rights as well as make a contribution to the child's upbringing and maintenance for a reasonable period.
Parental Rights and Responsibilities
There are 3 main types of parental rights and responsibilities:
When full parental rights and responsibilities are attained (for example, through sections 20 or 21, as explained above), a dad will have the exact same parental rights and responsibilities as the mom – which means the capacity to make decisions in exactly how the child is to be brought up, cared for and treated.
Responsibility to Maintain Children
It is crucial to understand that dads and moms have a duty to maintain (i.e., financially support) their child. This duty is applicable even when a dad is not wedded to their child's mother or does not have parental rights. For example, a father is still expected to pay childcare maintenance even if he has no contact with his child or even after a divorce.
Parental Consent
In terms of section 30, more than one person may have and exercise parental rights and responsibilities. Each holder is usually entitled to exercise parental rights without having the permission of any other holder – exceptions include when a parenting plan or court order requires consent, or decisions pertaining to a child's marriage, adoption, leaving the country, applications for a passport and legal changes or transactions affecting a child's immovable property.
In terms of section 31, however, what parental rights holders are obligated to do in taking decisions is properly consider the views and desires of a co-holder of parental rights if they are taking a decision that is likely to significantly affect the rights of the co-holder in question.
The Termination of Parental Rights
It is possible for a father and a mother to lose his parental rights or have them limited or suspended, and it is just as possible for a father to apply to have the rights of a parental rights co-holder limited, suspended or terminated. Any holder of parental rights, a person with sufficient interest – or even a child – could apply to have the parental rights and responsibilities of a rights holder limited, suspended or terminated. In determining any such application, a court will give consideration to all relevant factors, including the nature of the relationship between the child and the parental rights holder.
Unmarried fathers have been awarded the right to register their biological children under their surname. This was an important victory for unmarried fathers and follows a recent ruling by the Constitutional Court which examined the constitutionality of the provisions of section 10 of the Births and Deaths Registration Act 51 of 1992 (“Births Act”). The Constitutional Court, in the case of Centre for Child Law v Director General: Department of Home Affairs and Others (2021) ZACC 31, primarily related to how section 10 of the Births Act impacts unmarried fathers' human rights as safeguarded in the Constitution. The Constitutional Court had to determine on the legitimacy of section 10 of the Births Act and whether or not this section amounted to unfair discrimination, impairing the dignity of both unmarried fathers and children conceived out of wedlock. In this case, the Department of Home Affairs declined to register the child under the surname of the unmarried father, as they assumed that the registration will not comply with the provisions of the Births Act.
It was debated before the Constitutional Court that section 10 of the Births Act was unconstitutional as it prohibited unmarried fathers from registering their children's birth under their surname in the absence of the mother or without her consent. Furthermore, the differentiation between children born in or out of wedlock was irrational, and unlawfully discriminated against both the unmarried fathers and children born out of wedlock.
In its judgment, the Constitutional Court confirmed that section 10 of the Births Act does restrict 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 consequently declared section 10 of the Births Act unconstitutional.
One of the reasons for proclaiming this section unconstitutional had been due to the fact that it amounts to unfair discrimination (right to equality) on the basis of marital status, sex and gender. As pointed out above, this section emphasized a distinction in how the law applied to married and unmarried fathers, which leads to discrimination on marital status. Furthermore, the section also demonstrated a difference between mothers and unmarried fathers as mothers do not need to involve the unmarried fathers in the same way. The Constitutional Court mentioned that this preserves the stereotypical assumption that a child's care remains principally with the mother and leads to discrimination founded on sex and gender.
When does a dad have parental rights and responsibilities?
Dads (as with all parents) need to acquire parental rights and responsibilities in order to exercise and fulfil them.
Married Dads:
In terms of section 20 of the Children's Act, a biological father automatically has full parental rights and responsibilities over their child if the dad is married to the child's mom. In addition, a father will gain the same rights and responsibilities if the father was or is:
- Married to the child's mother at the time that the child was conceived;
- Married to the child's mother at the time that the child was born; or
- Married to the child's mother any time between the child's conception and birth.
Unmarried Dads:
Unmarried dads also get full parental rights and responsibilities, in terms of section 21, if they were either living in a permanent life partnership with the child's mother at the time of the child's birth, or if they consent and successfully apply for such rights as well as make a contribution to the child's upbringing and maintenance for a reasonable period.
Parental Rights and Responsibilities
There are 3 main types of parental rights and responsibilities:
- care;
- contact; and
- guardianship.
When full parental rights and responsibilities are attained (for example, through sections 20 or 21, as explained above), a dad will have the exact same parental rights and responsibilities as the mom – which means the capacity to make decisions in exactly how the child is to be brought up, cared for and treated.
Responsibility to Maintain Children
It is crucial to understand that dads and moms have a duty to maintain (i.e., financially support) their child. This duty is applicable even when a dad is not wedded to their child's mother or does not have parental rights. For example, a father is still expected to pay childcare maintenance even if he has no contact with his child or even after a divorce.
Parental Consent
In terms of section 30, more than one person may have and exercise parental rights and responsibilities. Each holder is usually entitled to exercise parental rights without having the permission of any other holder – exceptions include when a parenting plan or court order requires consent, or decisions pertaining to a child's marriage, adoption, leaving the country, applications for a passport and legal changes or transactions affecting a child's immovable property.
In terms of section 31, however, what parental rights holders are obligated to do in taking decisions is properly consider the views and desires of a co-holder of parental rights if they are taking a decision that is likely to significantly affect the rights of the co-holder in question.
The Termination of Parental Rights
It is possible for a father and a mother to lose his parental rights or have them limited or suspended, and it is just as possible for a father to apply to have the rights of a parental rights co-holder limited, suspended or terminated. Any holder of parental rights, a person with sufficient interest – or even a child – could apply to have the parental rights and responsibilities of a rights holder limited, suspended or terminated. In determining any such application, a court will give consideration to all relevant factors, including the nature of the relationship between the child and the parental rights holder.