Fathers’ rights in divorce – South Africa

28 Jul 2021

The Children’s Act 38 of 2005 is watershed legislation designed to achieve many purposes. Prime among them is ensuring the best interests of the child are guarded and treated as of paramount importance in any matter concerning a child. The Children’s Act may also go a long way in resolving archaic and gender-powered relations within marital and parental relationships. It is an unfortunate reality that gender biases and preconceived gender norms often make it difficult for parents to assert and exercise their rights in various ways, for example, a father accessing his children.

When does a father have parental rights and responsibilities?

Fathers (as with all parents) need to acquire parental rights and responsibilities in order to exercise and fulfil them.

Married fathers

In terms of section 20 of the Children’s Act, a biological father automatically has full parental rights and responsibilities over his child if the father is married to the child’s mother. Additionally, a father will acquire the same rights and responsibilities if the father was or is:

1. Married to the child’s mother at the time that the child was conceived;
2. Married to the child’s mother at the time that the child was born; or
3. Married to the child’s mother any time between the child’s conception and birth.

Unmarried fathers

Unmarried fathers also acquire 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 contribute to the child’s upbringing and maintenance for a reasonable period.

Exercising parental rights and responsibilities

The Children’s Act allocates the rights and responsibilities of both children and parents. There are three main types of parental rights and responsibilities: (1) care; (2) contact and (3) guardianship.

When full parental rights and responsibilities are gained (for example, through sections 20 or 21), a father will have the same parental rights and responsibilities as the mother – meaning the same ability to make decisions on how the child is to be raised, cared for and treated. This is, however, provided that parental rights are not restricted, suspended or terminated, as explained below.

Responsibility to maintain a child (applies to both married and unmarried fathers)

It is important to understand that fathers (and mothers) have a responsibility to maintain (i.e., financially support) their child. This responsibility applies even when a father is not married to the child’s mother or does not have parental rights. For instance, a father is still required to pay childcare maintenance even if he has no contact with his child or even after a divorce (i.e. a divorce will not free a father from his duty to maintain his child).

Parental consent

In terms of section 30, more than one person may have and exercise parental rights and responsibilities (‘hold’ or be a ‘holder’ or ‘co-holder’ of parental rights and responsibilities). Each holder is generally entitled to exercise parental rights without the consent of any other holder. Exceptions include when a parenting plan or court order requires consent, or decisions regarding a child’s marriage, adoption, leaving the country, application for a passport or legal changes or transactions affecting a child’s immovable property.

However, in terms of section 31, parental rights holders are required to duly consider the views and wishes of a co-holder of parental rights if they are taking a decision that is likely to affect the rights of the co-holder in question.

Unfit parents and termination of parental rights

It is possible for a father to lose his parental rights or have them restricted or suspended, and it is just as possible for a father to apply to have the rights of a co-holder restricted, suspended or terminated. Any holder of parental rights, a person with sufficient interest, or even a child, may apply to have the parental rights and responsibilities of a rights holder restricted, suspended or terminated. In deciding such application, a court will consider all relevant factors, including the nature of the relationship between the child and the parental rights holder.

Seeking professional legal assistance

Adams & Adams has extensive experience in dealing with the full range of family law matters. Our experts have a history of achieving justice for clients and ensuring that the best interests of the child are of paramount importance in any matter concerning children.

See also:

• The right to be a dad
• Divorce lawyers: Preparation beforehand
• Protecting your right to parent
• Law of Persons 7e

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)