#MandelaDay: gender equality for separated parents

18 July 2024 ,  Zelnè du Toit 545
Gender equality in parental rights is a major goal in the South African legal system. Although mothers have traditionally been granted primary care of minor children in divorce or separation cases, there is a growing recognition of fathers’ roles in childcare.

Whilst some parents use minor children as part of a power match of tug-of-war, Section 28(2) of the Constitution remains clear: “A child’s best interests are of paramount importance in every matter concerning the child. It is clear that no gender can be assigned to “a child’s best interest” and as such the Courts are moving away from the idea that mothers are more suitable to be primary care givers and are evaluating matters on a case-by-case basis. 

In the case of Van Der Linde v Van der Linde  1996 (3) SA 509 (O), the  Court held that the quality of a parental role was no longer determined by the gender of the parent: a father could be just as good a “mother” as the biological mother of a child and, similarly, a mother could be just as good a “father” as the biological father of the child.

In the case of N.V v C.L (1575/2021) [2022] ZAFSHC 284 (21 October 2022)  the Court awarded the care and primary residency of a three-year-old to the father of the minor child and awarded contact rights to the mother seeing as same was in the best interests of the child concerned.

Even though there is still much ground to cover, gender equality in respect of care and contact of minor children, progress is surely being made in this regard.
Related Expertise: Divorce and Maintenance
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