More and more South Africans are opting for divorce. According to the latest research by StatsSA, divorces in South Africa increased by 0,3% to 25 326 in 2016. Needless to say, the divorce process can be quite messy and stressful, especially when children are involved, and now many believe that the divorce process discriminates against good dads.

Dads are at a disadvantage from the get-go

In an academic paper titled Father’s Rights to Contact: Moving Beyond the Adversarial Approach, Professor Weshal Domingo and law lecturer Prinslean Mahery write, “In most cases, it’s fathers who must battle to maintain contact with their children or fight to have contact with their children.” Many South Africans believe that preconceptions about gender create the foundation for this struggle. Society is conditioned to believe that women are more nurturing and capable of taking care of children (especially girls), while men, even as dads, are positioned as providers and career-focused. So, in many ways, fathers are already seen as the ‘lesser’ of the two parents.

What does the law say?

In terms of access to children post-divorce, the law gives both parents the right to see and spend time with their children regardless of whether they pay maintenance or not. Also, one parent cannot withhold access to their children. Of course, this does change if a parent is abusive or deemed a danger to a child. A revision of the Children’s  Act equals the playing field for both divorced parents, by giving dads the same rights and responsibilities as moms (unless a court determines otherwise). The Act also empowers children by giving them a right to maintain contact with their father.

Dealing with the ‘tender years’ doctrine

Despite what the law says, many fathers face biases, groundless allegations, prolonged lawsuits and a deliberate indifference towards the law and their parental rights.  Some South African judges still clutch onto an outdated concept called the ‘tender years’ doctrine. The ‘tender years’ doctrine is a legal principle that presumes that children under the age of four should be under their mother’s protection.

But it isn’t just the judges who are influenced by bias. Experts who are tasked with assisting the court to make a decision that will be in a child’s best interest often deliver recommendations that weigh in favour of the litigating parent instead of really considering what is in the best interest of the children involved.

The darker side of the divorce process

Of course, there is also a much darker side to divorce proceedings, called ‘black-market litigation’ and makes use of what’s known as a ‘windmill attack’. Errol Goetsch, the director of the Justice and Reconciliation Centre (JRC), wrote a paper about it and describes it as: “a strategy that uses hostile aggressive parenting, fraudulent litigation, protection orders and forensic reports to capture the coercive power of the state on behalf of a malicious divorcing spouse’s pursuit of a one-sided outcome (sole custody and money).”

Part of the strategy will go a something like this: the lawyer, usually a woman, explicitly incites the spouse to escalate her accusations and demands. She uses her legal knowledge to plot a path that bypasses the normal checks and balances against perjury. The more extreme they are, the more sympathy her client will enjoy in the courts and the bigger their pay-off will be, while the target exhausts his resources in defending himself and loses his ability to protect his rights.

And this strategy can be very effective, especially considering the previously mentioned biases against men in some courts, i.e. the preconceived gender roles and ‘tender years’ doctrine.

For one father, this resulted in him only seeing his child for 82 minutes in a 9-year period, after a high court granted a divorce that stripped him of his rights, refused reports from the family advocate and the independent psychologist and omitted the parenting plan.

The case was taken to the Constitutional Court by Goetsch, who argued, “[The High Court ruling] defeated the constitution’s protections with regard to the procedure and substance of the law, treating the father as the inferior parent and a problem to be removed rather than as a solution to be promoted.”

Room for improvement in the justice system

So with all this in mind, it is easy to see why many dads feel that the law discriminates against them based on their gender. And, while there are laws in place to ensure that both parents are treated equally, it is up to the courts and judges to ensure these rights are enforced and applied fairly in the best interest of children.

We also take a look at Employment Laws and Paternity Leave in South Africa.