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South Africa’s progressive legal framework, grounded in the Constitution and the Children’s Act 38 of 2005, advocates for gender equality and the best interests of the child in all matters concerning children. Despite this, mothers are overwhelmingly being granted primary care of their children during divorce litigation and post-divorce, representing a significant gender-disparity in court ordered parenting arrangements. This trend suggests that the courts may play a prominent, albeit unwitting, role in perpetuating gender bias and must be called to take swift action against it.
This article explores the potential prejudice against fathers in court order parenting arrangements, examining how overall societal statistics likely mirror disparities in legal outcomes. By analysing legislation, case law, psychological research, and available data, it advocates for a critical review of default practices to ensure the best interests of the child are truly served.
The Children’s Act emphasises that the best interests of the child are of paramount importance in every matter concerning the child (s 9). The Act provides a framework for considering their best interests, including the nature of the relationship between the child and each parent, and the capacity of each parent to provide for the child’s needs (s 7).
The language of the Act is gender-neutral, with the supposed intent of placing mothers and fathers on equal footing regarding their parental rights and responsibilities. The Constitution further reinforces equality, prohibiting unfair discrimination against any person based on their gender (s 9).
In practice, however, courts often award primary care to mothers, even when fathers have demonstrated equal or greater involvement in their children’s upbringing. This pattern suggests an implicit bias rooted in traditional gender roles, which may influence judicial decisions.
For example, in B v M [2006] 3 All SA 109 (W), the father sought primary residence of the children while opposing his ex-wife’s international relocation, emphasising his active role in their daily lives. Despite acknowledging his significant involvement, the court awarded primary residence to the mother, citing the need for stability and continuity. The court appeared to favour the maternal bond, reflecting an underlying assumption of mothers as the default primary caregivers.
Psychological research underscores the importance of maintaining strong relationships between children and both parents post-divorce. Reduced contact with fathers, especially when they have been primary caregivers, can adversely affect a child’s emotional well-being and development. A study by the Human Sciences Research Council (HSRC) indicates that active fatherhood positively affects children’s cognitive abilities, social behaviours, and emotional well-being (L Richter and R Morrell (eds) Baba: Men and Fatherhood in South Africa (Cape Town: HSRC Press 2006)).
Studies further indicate that children benefit from the continued involvement of both parents, which contributes to their sense of security and stability. Disruption of the paternal bond may lead to emotional distress, behavioural issues, and difficulties in social relationships. Such outcomes highlight the necessity for care arrangements that facilitate meaningful involvement of both parents, aligning with the child’s best interests as mandated by the Children’s Act (AL Curcio, AS Mak and AM George ‘Maternal and paternal bonding and self-esteem as predictors of psychological distress among male and female adolescents’ (2019) 29 Journal of Psychologists and Counsellors in Schools 54).
According to Statistics South Africa’s General Household Survey 2019, 42% of children live only with their mothers, while just 4% live only with their fathers. Approximately 32,7% of children live with both parents, and 21,3% live with neither biological parent.
While these statistics reflect general living arrangements and not primary care awards post-divorce, they suggest that mothers are predominantly the primary caregivers. The lack of detailed national statistics on primary care awards makes it challenging to quantify the disparity directly. However, considering the societal trend and anecdotal evidence, it is reasonable to infer that a similar disparity exists in court-ordered primary care arrangements.
The potential for this societal pattern to be replicated in legal outcomes suggests that fathers may face systemic challenges in obtaining primary caregiving roles post-divorce. This inference underscores the need for scrutinising primary care award practices to identify and address any biases that may disadvantage fathers.
The disparity in caregiving roles and primary care awards may stem from enduring societal stereotypes that view mothers as the natural primary caregivers. This perception can influence judicial attitudes, leading to decisions that favour mothers, even when fathers are equally capable.
The absence of detailed primary care awards following divorce statistics makes it difficult to quantify this bias definitively. However, the societal trend of children predominantly residing with mothers suggests that similar biases may exist within the legal system. This potential prejudice contravenes the constitutional principle of equality and the gender-neutral intent of the Children’s Act.
The tender years’ doctrine, historically favouring maternal primary care of young children, has been officially abolished. However, its influence lingers in contemporary primary care decisions. Courts often emphasise the need for stability and continuity in the child’s life, which can inadvertently favour the mother, especially when traditional caregiving roles have been established.
In P v P 2007 (5) SA 94 (SCA), the father was an active participant in his children’s lives. Despite his involvement and the testimony of three experts confirming that he is the more capable parent, the court a quo granted primary care to the mother, emphasising the importance of maintaining the children’s established routines and environments. In addition, and despite recognising the need for a gender-neutral approach to parenting roles, the Supreme Court of Appeal dismissed an appeal against the decision. This decision reflects an ongoing reliance on traditional gender roles, potentially at the expense of recognising the father’s caregiving contributions.
Section 9 of the Constitution guarantees equality before the law and prohibits unfair discrimination on various grounds, including gender. The apparent preference for mothers in primary care decisions raises questions about indirect gender discrimination against fathers.
‘Indirect discrimination happens when a seemingly neutral policy or practice disproportionately affects a particular group’ (Casemine ‘British Telecommunications Ltd v. Roberts & Anor: Distinguishing Direct and Indirect Sex Discrimination in Employment Law’ (www.casemine.com, accessed 15-2-2025)). If primary care decisions systematically favour mothers due to entrenched stereotypes, this could infringe on fathers’ constitutional rights to equality and dignity (ss 9 and 10).
In President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC), the Constitutional Court recognised that practices reinforcing gender stereotypes could constitute unfair discrimination. Applying this reasoning, primary care award practices that favour mothers based on traditional roles may be constitutionally problematic.
South Africa is a signatory to the United Nations Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child, both emphasising the child’s right to maintain personal relations and direct contact with both parents on a regular basis, unless contrary to the child’s best interests.
Comparative studies show that countries like Australia promote shared parenting and have legal frameworks supporting equal care arrangements. According to the Australian Institute of Family Studies, approximately 21% of children have shared care-time arrangements, 45% live primarily with their mother, and 11% live primarily with their father. This demonstrate that gender-neutral primary care award practices can be implemented effectively, benefiting children by maintaining strong relationships with both parents, although it is also evidence that the need for reform is not only limited to South Africa.
To address potential bias and align South Africa with international trends promoting equal parenting, the following measures are recommended:
The potential prejudice against fathers in primary care decisions is a significant concern that warrants attention. While the legal framework in South Africa advocates for gender neutrality and the best interests of the child, societal norms and potential judicial biases may undermine these principles.
By recognising the influence of overall societal disparities on primary care awards, there is an opportunity to critically assess and reform caregiver norms, stereotypes and practices. This will ensure that fathers are given fair consideration in primary care decisions, and that such decisions not only uphold constitutional rights but also serve the best interests of children who benefit from the active involvement of both parents.
It is imperative for the legal community, policymakers, and society at large to work collaboratively towards eliminating gender bias in primary care orders as a result, promoting equality, and fostering environments where children can thrive with the support of both parents. If society would not question a care arrangement during the subsistence of a marriage, then such an arrangement should not be questioned post-divorce, and a father should not be seen as a less capable parent post-divorce based on the paternal parent instead of the maternal.
AJ Truter BCom (Law) (Stell) LLB (Unisa) is a legal practitioner at Van Staden Truter Inc t/a VST Attorneys in Cape Town.
This article was first published in De Rebus in 2025 (April) DR 18.
