Maternal Preference Rule: Towards Equality In Parental Rights?

Jacques Peacock – Associate

The concept of maternal preference in family law has long been a subject of debate and contention.  While the South African legal system acknowledges the crucial role that fathers can play in their children’s lives, it still falls short in granting them automatic parental responsibilities and rights.  This blog post explores the implications of the maternal preference rule in South African family law and advocates for a more equitable approach to parental rights.

The Status Quo and Discrimination:
Under Section 19 of the Children’s Act, biological mothers, regardless of their marital status or commitment to their child, are granted full parental responsibilities and rights automatically.  Conversely, biological fathers must either be married to the mother or demonstrate their commitment through specific actions outlined in Sections 20 and 21 of the Act.  This disparity creates a discriminatory distinction between mothers and fathers based solely on their biological relationship with the child (Louw, 2010).

Overlapping Discrimination:
The discrimination faced by biological fathers intersects with discrimination based on marital status.  In the case of B v S 1995 3 SA 571 (A), the court determined that fathers of extra-marital children should not be treated differently from married fathers when it comes to care or contact with their children.  The court emphasized that decisions should prioritise the best interests of the child rather than the parents’ positions (Louw, 2010).

Best Interests of the Child:
The principle that guides decisions regarding the primary residency of children is that they must be in the best interests of the child. This principle ensures that the child’s welfare is the paramount consideration in care disputes (Unreported Judgment: P[….] M[….] S[….] versus A[….] S[….] S[….], case number 14812/2020, before Van der Schyff J).  However, it is essential to strike a balance between considering the fact of maternity and avoiding unfair discrimination against fathers (Ex parte Critchfield and Another 1999 (3) SA 132, hereafter “Critchfield”).

Towards Equality:
While acknowledging the significance of maternity in early child care decisions, it is crucial to ensure that it does not become the sole determining factor.  Courts must weigh all relevant factors, including the child’s best interests, parental involvement, and the child’s specific needs.  The Constitution calls for an astute approach that recognizes the importance of maternity while preventing undue bias (Critchfield).

The maternal preference rule in South African family law perpetuates a gender-based distinction, which deprives biological fathers of automatic parental responsibilities and rights.  Although strides have been made to recognize the importance of fathers in the lives of their children, further steps are needed to promote equality in parental rights. By considering the best interests of the child and adopting a balanced approach that includes multiple factors, South Africa can move closer to a fair and equitable system that respects the rights of both mothers and fathers in parenting their children.
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Kindly note this article is intended for general information purposes only and does not constitute legal advice. Should you need legal advice, please contact one of our legal practitioners.

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