You raise an interesting topic which has relevance in our South African law today! The relevant legislation includes the Children’s Act 38 of 2005, The Divorce Act 70 of 1979. One must bear in mind that the law is not constant and enduring, entire acts are repealed and replaced with new acts, existing acts are amended in the form of deletion of certain sections or adding of yet others. . I’m reluctant to make a sweeping generalization but the Courts see the position of women today differently than they see women’s roles before 1994. You see men and women are equal in every way. When it comes to maintenance a court can make a maintenance order ruling for the woman to pay the man a certain amount of money every month or vice versa. Legally women must obtain gainful employment, this means that they cannot work for their favorite charity for free and expect their ex husband to maintain them. With equality of the sexes comes equality in parental responsibility and providing for one’s self!
1. The general legal notion is that women can no longer rely on marriage or divorce for their lifestyle. They must go and work and support themselves;
2. On the issue of children both parents, married or unmarried have equal joint custody, parental responsibility and parental accountability for that child that they brought into this world. This applies unless a court by way of court order decides otherwise;
3. I’ll give you an example of something that transpired in my life recently, my friend’s sister is unmarried but she has a child. The child is 2 years old. The mother and father are separated so Miss X stays with her family. I extend kindness to people within reasonable limits. Over a 3 week period, over night, I noticed a situation where the grand father of Miss X, would call me and ask me to assist with baby related activities, i.e. take baby to doctor, take baby and babies mother for prayers for the baby and take babies mother to go buy food for the baby. On one faithful Friday I was literally busy, I was flooded with work, had no time to breathe. The grand father phones me from work and tells me that there is an emergency, the baby hasn’t eaten the whole day and that I must give the baby’s mother a lift to the shops to go and buy the bay food. I was really very busy, but since it was presented to me as an emergency, I left my work and went to pick up the babies mother to go and buy baby food . I don’t have children but I know that if a 2 year baby hasn’t eaten for the entire day, that child will be screaming and crying. When I got there, I found a completely different situation, the baby was at ease and seemed very content. It then occurred to me that this woman whom I don’t even know her name perhaps thought that over night, without my consent, without my knowledge and without my willingness, I would somehow magically become her husband and the father to another man’s child! That’s never going happen!
4. Now, legally, let’s say the baby had no food the entire day, and I could not come by to give the baby’s mother a lift to go and buy the food, the law in the form of the welfare is not going to come knocking on my door! In fact, they wouldn’t even want to talk to me. The law in the form of the welfare would come knocking on only 2 people’s door, namely the mother and the father of that child and no one else. They would have then charged both parents with criminal negligence!
5. A further legal problem in this scenario, is that I cannot intervene in a child’s life without the consent of both parents. This baby’s father could have charged me criminally for involvement in his child’s life! In this scenario, the grand parents and Uncles, Miss X’s brothers and parents somehow erroneously believe that they have rights and a say in this baby’s life. They have none! The law is very, very clear, only the mother and father of that child have parental responsibility, accountability and a say in that child’s life unless a court decides otherwise!