Unmarried fathers’ rights and responsibilities


This Father’s Day/Youth Day, we reflect on fatherhood and young fathers

Father’s Day coincides with Youth Day this year, and this provides an opportunity to reflect on the role…some would say plight…of young fathers, over 90% of whom are unmarried and not living with the mother of their child, as well as on the rights of unmarried fathers more broadly.

South Africa has the highest rate of teenage pregnancy globally, with nearly one in four girls falling pregnant before the age of 20. An estimated 150,000 girls between the age of 10 and 19 fell pregnant in the 2022/23 financial year. As only 4% of girls in South Africa are married before the age of 18, almost all the fathers of these babies are, by default, unmarried fathers. Rates may be slightly higher than this as customary marriages are rarely officially registered, but South Africa is not generally a country where child brides are widespread.

Teen pregnancy is a massive social problem, acknowledged by Women, Youth and Persons with Disabilities Minister, Nkosazana Dlamini-Zuma. In a recent speech, she said the phenomenon of teenage pregnancy has devastating social and economic costs. Considerable attention and numerous programmes concerning contraception and empowerment are directed at adolescent girls and young women (AGYW), and rightly so. But much more needs to be done to educate boys and young men on sexual responsibility. Tlangelani Loneck Makamu is a researcher who holds a Master’s degree in Demography and Population Studies. His dissertation, “Young Fathers in South Africa”, is a cross-sectional study analysing responses from more than four million South African males aged 15 to 24 to the 2008 and 2012 South African National HIV Prevalence, HIV Incidence, Behaviour and Communication Surveys. Over 360,000 of these males were fathers. Makamu believes “Young fathers have been overlooked in the existing policy landscape of early parenting.” 50% of teen dads in the study were unemployed, and only one in 10 remained in school after becoming a father. A large proportion were not involved in their children’s lives.

The reasons for this are multiple and complex. These young men are not all “deadbeat dads”. Some would like to be involved, but are denied access by the mother – or often the grandparents – of their child. Some believe they don’t belong in their child’s life. This raises two questions…why do single fathers, and young fathers in particular, disavow their responsibilities; and what are their rights? In some cases the former occurs due to poor awareness or understanding of the latter.

Barriers to involvement in fatherhood

Heartlines is a South African NGO that works for values-based social change. One of its core programmes is Fathers Matter, which aims to build awareness about why fathers matter in the lives of children and create a supportive environment to promote positive fatherhood.

In 2019 Heartlines conducted formative research to gain insight into fatherhood in the South African context. Researchers carried out focus group discussions and key informant interviews in four provinces with mainly African participants and smaller samples of Indian, Coloured, and White participants. The research revealed a deeply embedded culture that equates fatherhood with material and financial provision. Being able to provide financially is a defining component of fatherhood. Communities, mothers and extended families reinforced this definition.

Therefore, when fathers are unable to provide materially for their children, they are either denied involvement in the lives of their children or they self-exclude out of a sense of shame. Inability to provide, seen as the fundamental role and purpose of fathers, prevents some men – and many young fathers – from other types of involvement in parenting.

Makamu’s study drew similar conclusions. The 90% high school drop-out rate of teen fathers was due to them seeking employment. “Young fathers acknowledged that the caring role of a father is overtaken by a need to provide financially for their children. Therefore, failure to provide financially contributes to most young fathers dropping out of school to try and provide for their children.” Lack of success in finding work, a predictable outcome with our high youth unemployment and their lack of qualifications,  was a key reason they did not remain in their children’s lives, according to Makamu.

However, while this transactional view of fatherhood is the single biggest reason for non-involved fathers, the Heartlines study identified other barriers to involved fatherhood. Economic migration is a significant barrier, as many men work far away from their families in order to provide for them. Unemployment is another barrier to men’s involvement, though this is likely highly correlated with the previous two factors. 

Latasha Treger Slavin, the principal researcher on the Heartlines study, said that “Many men told us women were often barriers to them being involved in their children’s lives. If they couldn’t provide financially, women sometimes denied them access to the children.” This demonstrates how deeply entrenched the cultural norm of “men as providers” is in our society.

Other barriers include institutional and systemic practices, such as in healthcare and legal services, difficult personal relationships with the child’s mother, culturally assumed gender roles which make it unmanly to be seen caring for a child, and gender practices which include women returning to their parental home after giving birth.

Unmarried fathers’ rights

Children’s rights in South Africa are enshrined in the Children’s Act. The rights of children come before the rights of parents, a principle known as the “best interests of the child”. This principle allows a parent to relocate with a child after divorce, if economic opportunites will give the child a better life, even if it means taking them away from one parent. By contrast, parents have responsibilities – a duty to provide for the child materially and to nurture and care for them, keep them safe from harm, and foster their emotional wellbeing. In any discussion of fatherhood, these responsibilities must be paramount. However, it is not inappropriate to include fathers’ rights in the discussion, when fathers are sometimes kept from seeing their children. The Children’s Act recognises that children need both parents, whether married or not, and it gives parental rights to unmarried fathers in fairly straightforward terms. An unmarried biological father automatically acquires full parental responsibilities if, when the child is born, he and the mother are living together as life partners, OR if he is not living with the mother, he satisfies these conditions:

  • He consents to being or applies to be identified as the child’s father, or he pays damages in terms of customary law
  • He contributes or has attempted to contribute to the child’s upbringing and towards expenses in connection with the maintenance of the child for a reasonable period

As long as he meets these requirements, the unmarried father automatically acquires parental rights and responsibilities. If an unmarried father does not meet these conditions, he can apply to the court for an order granting him parental responsibilities and rights.

The importance of fathers’ involvement

A key message from the Heartlines research is the importance of fathers in the lives of their children. All participants, male, female and regardless of age, wished their fathers had participated more in their lives. They expressed a desire for connection with their fathers and they wanted their fathers to be engaged, available and responsible. Society may see financial provision as a father’s most important job, but these participants thought provision was less important than being engaged and available. 

There are many, many studies showing that fathers’ involvement with their children has a substantial influence on children’s health and development. It’s simple – children need their fathers. How can we as a society encourage, nurture and support fathers? What needs to change so men feel proud to carry a sleeping infant on their back, or comfort a crying child, rather than feeling “unmanly”? There is nothing more manly than being a good father.

This Father’s Day, let’s not only celebrate our own fathers. Let’s acknowledge the importance of fathers in our communities and our society and commit to breaking down the structural barriers faced by all men, and especially by single fathers and young men, in embracing positive fatherhood and thereby improving their children’s, their own lives, and our society.

If you need support as a father

Despite legal rights, some fathers have difficulty maintaining contact with a child if they are no longer in a relationship with the mother, especially if they are young. If you need help to enjoy your full parental rights and responsibilities, or need support with your parenting skills, call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za. We believe it is in the best interests of the child to have a healthy relationship with both parents and we will help you achieve that.

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The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.

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