UNMARRIED FATHERS CAN NOW HAVE THEIR CHILDREN BEAR THEIR SURNAMES

We received the following enquiry on info@frankmorganattorneys.co.za.

“Good day, I might need your assistance , my baby mama has refused to register my son on my surname even after I have fulfilled all traditional rights according to my culture and hers, she claims to only be able to grant me my wish after I have married her”. Kindly assist.

In 2020, more than 60 percent of births were registered without the details of the fathers – Stats SA

This is surely no surprise given the social,traditional, economic and gender dynamics of our country which might directly or indirectly have effect on the aforementioned stats.

Theres always light at the end of the tunnel , and a silver lining to every cloud. A recent ruling by the Constitutional Court has now overturned what we once knew and accepted and has handed out some form of victory to men in South Africa-existing fathers and fathers to be alike and their offspring born out of wedlock.

The Constitutional Court which looked at the constitutionality of the provision 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, specifically referred to how section 10 of the Births Act impacts unmarried fathers' human rights as protected in the Constitution. The Constitutional Court had to decide on the validity of section 10 of the Births Act and whether this section amounts to unfair discrimination, impairing the dignity of both unmarried fathers and children born out of wedlock

Position prior the Constitutional Court's ruling

Prior to the ruling made by the Constitutional Court, unmarried fathers could not register their children under their surnames without the consent of the mother. The reason for this was due to the legislative restriction imposed by section 10 of the Births Act.

Section 10 of the Births Act specifically deals with the registration of children born out of wedlock. This section expressly provides 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.

The Constitutional Court's ruling

In this case before the Constitutional Court, the Department of Home Affairs refused to register the child under the surname of the unmarried father, as they believed that the registration would not comply with the provisions of the Births Act.

It was argued before the Constitutional Court that section 10 of the Births Act is unconstitutional as it stops unmarried fathers from registering their children's birth under their surname in the absence of the mother or without her consent. Further, the distinction between children born in or out of wedlock is illogical, and unlawfully discriminates against both unmarried fathers and children born out of wedlock.

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.

Conclusion

In light of the above, unmarried fathers can now register their children under their surnames. This Constitutional Court case is a clear win for the development and promotion of human rights in South Africa. It is important that our courts continue to identify and route out any signs of unfair discrimination in our legislation. Unfair discrimination not only impairs the dignity of people, but also nullifies and delays the efforts already made towards building a country based on constitutional values. Not only does section 10 of the Births Act clearly delay the development and promotion of constitutional values which seek to promote equality and dignity, but it worryingly fails to protect the best interests of the child by discriminating against children on the grounds of social origin or birth.

So fathers with kids out of wedlock can now seek redress in ensuring that their kids can bear their surnames if they so wish, prospective fathers after fulfilling or traditional rights and customary law can also make their details available to DHA officials on the day of births registeration for their child.

Feel free to contact our offices or consult with any of our attorneys virtually or telephonically if you need legal assistance in this regard, our fees are cost effective and our service is top notch.