In the name of the father

Court grants unmarried fathers the right to give a child their surname

Names, especially surnames, have a huge significance in society. Your name is your identity. More and more women opt to retain their own name on marriage, because adopting the husband’s name is a form of social statement: “My identity is now the wife of Mr. So-and-so.” Understandably, many women prefer not to be identified by their marital status, when a man’s name and title do not change on marriage.

When an unmarried couple has a child, the name is often the subject of lengthy debate…and we’re not talking about the first name! Indeed, many married parents opt to eschew patriarchy and put the family names together in a “double-barrelled” surname. This is also an option for unmarried parents. But until recently any child born to unmarried parents was automatically given the mother’s surname, unless the mother consented to the father’s surname being adopted.

Section 10 of the Births and Death Registration Act

Section 10 of the Births and Death Registration Act sets out the law regarding notification of the birth of a child born “out of wedlock” (let’s hope this antiquated terminology eventually dies out). Section 10 requires the child born out of wedlock to be given the mother’s surname. Alternatively, the father’s surname may be given to the child, at the joint request of the mother and in the mother’s presence, assuming the father acknowledges paternity.

In plain English

Regular readers of this blog will know that one of the hallmarks of SD Law is our desire and ability to “translate” complicated legal concepts into language and examples non-legal people can understand. The wording of many Acts can be confusing and opaque. In the case of Section 10, in simple terms, a father of a child born outside of marriage may register the birth, but he may not give the child his surname without the mother present to give her consent. 

Now it’s hard to imagine a scenario where a newborn baby’s birth would be registered by the father alone. Births must be registered within 30 days, and babies tend to be in the primary care of the mother at that age. But, just because it is unusual does not mean it is impossible. A mother may be ill; she may have substance abuse issues and have chosen to delegate primary care to the father. She may have died in childbirth.

Ultimately, it does not matter what is “usual”. Families are as different as snowflakes and every family should have an equal right to name their child as they see fit. This is precisely what the Law Clinic in the Law Faculty of the University of Pretoria challenged, in the case of the Centre for Child Law v Director-General: Department of Home Affairs and Others (19 May 2020).

Section 10 does not prevent a father registering the birth of his child, whether married to the mother or not, but it presents a bar when it comes to notifying the birth of his child under his surname in the mother’s absence. This means that, should the mother be ill, which is not uncommon post-partum – even if she has agreed to the child taking the father’s surname – if she cannot attend with the father to register the birth, the father’s surname cannot appear on the birth certificate. 

Unconstitutional

The University of Pretoria’s case, which was an appeal against an earlier decision, was founded on the premise that Section 10 is discriminatory. It discriminates against fathers on the basis of marital status. Section 9 of our Constitution forbids discrimination on the basis of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

The appeal was upheld. Section 10 of the Act was declared invalid and inconsistent with the Constitution. The following words were added to section 10: “under the surname of the father where the father is the person giving notice of the child’s birth and acknowledges his paternity in writing under oath”. The order was referred to the Constitutional Court for confirmation.

A victory for equality

SD Law has a reputation for defending the vulnerable in society. We are staunch defenders of the Constitution. We stand up for women’s rights and speak out against gender-based violence. But ultimately we believe in equality under the law, justice and fairness. We support a woman’s right to govern her reproductive capacity and to choose her own name. But we also fully endorse a father’s right to have an equal say in the naming of his child. 

We believe this decision is an important landmark in upholding our Constitution. We support the rights of all parents to have an equal say in the surname their child will carry through life.  

We’ll help you realise your rights

If you are an unmarried parent and want advice on your rights and the law, we can help. We are family lawyers with extensive experience of child care and contact, antenuptial contracts, cohabitation, wills and estate planning and other relationship and family matters. We now offer online consultations. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za today, and we’ll call you back to schedule a meeting at a time that suits you, on the platform of your choosing.

Further reading:

• Are you a single parent? Know your rights and obligations
• Travel Consent When Taking a Child Abroad
• Unmarried father – know your rights

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

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