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South Africa’s Top Court Grants Unmarried Fathers Equal Naming Rights

A historic victory for equality reshapes family law in South Africa. Unmarried fathers now hold the same rights as mothers—no strings attached.

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The image shows an old book with a map of South Africa on it. The map is detailed and shows the...
The image shows an old book with a map of South Africa on it. The map is detailed and shows the various countries and regions of the country. The text on the book provides additional information about the map, such as the names of cities, rivers, and other geographical features.

South Africa’s Top Court Grants Unmarried Fathers Equal Naming Rights

A landmark ruling by South Africa’s Constitutional Court has removed a legal barrier for unmarried fathers. The decision struck down a law requiring a mother’s consent before a father could register his child under his surname. The case centred on a challenge to section 10 of the Births and Deaths Registration Act (BDRA) of 1992, which was found to discriminate against unmarried fathers and their children.

The case, Centre for Child Law v Director-General: Department of Home Affairs and Others, began as a challenge to the BDRA’s requirement that unmarried fathers obtain the mother’s permission to register a child under their surname. The Constitutional Court ruled this provision unconstitutional, as it unfairly discriminated against fathers and children born outside marriage. The judgment affirmed that parental rights and responsibilities should not depend on marital status.

The court severed the unconstitutional portion of section 10, aligning the law with the Children’s Act of 2005. This act already recognised the parental rights of unmarried fathers under section 21. The ruling confirmed that the BDRA’s requirement violated constitutional rights to equality, dignity, and the best interests of the child. As a result, the Department of Home Affairs must now update its procedures. Unmarried fathers who meet the conditions of the Children’s Act can register their children independently, including using their own surname. The judgment applies retrospectively but includes safeguards to avoid administrative confusion. Legal experts note the decision’s wide-reaching impact. It strengthens fathers' rights to legal recognition and ensures children can access identity documents without unnecessary obstacles. The case marks a significant step in South Africa’s constitutional jurisprudence on gender equality and children’s rights.

The ruling removes a long-standing legal hurdle for unmarried fathers seeking to register their child under their surname. The Department of Home Affairs must now implement changes to reflect the court’s decision. This ensures compliance with the Children’s Act and upholds the constitutional rights of fathers and their children.

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