Divorce Attorney Cape Town

Same-Sex partners not in a Civil Union – Do they automatically acquire parental rights to children?

An interesting question that arises in South African family law is whether a woman that was in a same-sex relationship (Lesbian) is able to acquire parental responsibilities and rights to a child that was born as a result of artificial fertilisation from the other partner. Where one party is the biological mother of a minor child born after she was inseminated with the sperm of an unknown donor the situation becomes somewhat problematic when the relationship ends and the other partner attempts to obtain full parental responsibilities and rights in respect of the child as contemplated in s 18(2), (3), (4) and (5) of the Children’s Act 38 of 2005 (“the Children’s Act”), including guardianship.

The problems that arise

Our Children’s Act does not provide an applicant in this position with parental responsibilities and rights automatically.  Such parental responsibilities and rights are, however, granted automatically to the mother who is biologically linked to the child as well as to a father who was married (or even unmarried) to the mother at the time if he is biologically linked to the child.  If the biological mother and father were in a permanent life partnership at the time of the birth of their child, the father will automatically acquire parental rights and duties in respect of his child.  In a scenario of a same sex partnership however, one does not acquire such rights automatically even though the parties was in a permanent life partnership at the time of the birth of the minor child.

Essentially, where the other partner is not biologically linked to her minor child, she must utilise the provisions of ss 23 and 24 of the Children’s Act in order to obtain full parental responsibilities and rights despite the parties’ agreement in this regard or their relationship at the time.

In terms of s 18(2) of the Children’s Act the parental responsibilities and rights that a person may have in respect of a child, include the responsibilities and the rights:

  • to care for the child;
  • to maintain contact with the child;
  • to act as guardian of the child; and
  • to contribute to the maintenance of the child.

There is very little reported case law in respect of ss 23 and 24 of the Children’s Act.  The only reported cases in which reference has been made to these sections are Ex parte Sibisi 2011 (1) SA 192 (KZP) and FS v JJ and Another 2011 (3) SA 126 (SCA).  None of these cases dealt with the following questions:

  • When can a second mother/father in a same sex relationship, who is not biologically linked to a minor child, acquire parental responsibilities and rights and can such rights, include both care and contact?
  • Can such a second mother/father acquire full parental responsibilities and rights or are her/his rights limited to that of contact or care?
  • It is submitted that the test set out in Drummond v Drummond 1979 (1) SA 161 (A) regarding when it can be said that a person is living with another as man and wife on a permanent basis is appropriate to define whether or not the applicant and the respondent were in a permanent relationship. Trengove AJA stated that it denotes ‘the basic components of a marital relationship except for the formality of marriage’ and that ‘the main components of a modus vivendi akin to that of husband and wife are, firstly, living under the same roof, secondly, establishing, maintaining and contributing to a joint household, and thirdly maintaining an intimate relationship … in which sexual intercourse, in the case of parties of moderate age, would usually, but not necessarily always, be an essential concomitant. And, in that context, the phrase “on a permanent basis” connotes, in my view, a continuing relationship, one that is intended by the parties to continue indefinitely without change.’

The legislature has recognised the development of the rights of third parties by introducing ss 23 and 24 of the Children’s Act.  The mechanism for the recognition of the rights of parents whose children are born through artificial insemination.

If a Court should hold that the one partner cannot acquire both care and contact (as well as guardianship) of the minor child the Children’s Act and the Court may be discriminating against such a partner on the basis of gender, marital status and sexual orientation.

The use of the word “or” in s 23(1) does not exclude the awarding of rights of care and contact at the same time.  If that should be its meaning it would compel an applicant to launch more than one application to obtain care of and contact with a child.

The common law had not precluded applications seeking the awarding of care or contact.  It is generally accepted that the Children’s Act has expanded on the common law in that it is the first time that the legislature specifically states that any person with an interest may make such an application.

Subsection 23(4) which provides that the granting of care or contact to a person in terms of s 23 does not affect the parental responsibilities and rights that any other person may have in respect of the same child, does not exclude the granting of more than one parental responsibility and right.

The term “care” does not only refer to primary care.  As a co-holder of the parental responsibilities and rights of contact and care the other partner would be party to decision-making and both she and the mother of the child would have to comply with the provisions of ss 30 and 31 of the Children’s Act.

In addition if both have rights of care and contact the parties could conclude a parenting plan and would be compelled to mediate disputes in accordance with the provisions of the Children’s Act and relevant case law.

A child’s best interests are of paramount importance in every matter concerning the child.

The Law Relating to a child conceived as a result of artificial fertilization

Prior to the Children’s Act artificial fertilization was governed by section 5 of the Children’s Status Act. The provision of section 5 of the Children’s Status Act which treated children as ‘legitimate’ if the birth mother was married but not if she was a partner in a permanent same-sex life partnership was held by the Constitutional Court in J v Director-General, Department of Home Affairs 2003 (5) SA 605 (D) to be unconstitutional. The court found that the impugned provision unjustifiably discriminated against the same-sex life partners on the ground of their sexual orientation. The court cured the unconstitutionality by striking out the word ‘married’ and reading in the phrase ‘or permanent same-sex life partner’.

The  Civil Union  Act  17  of  2006  has  since  come  into  operation. That  Act provides that reference to marriage, husband, wife or spouse in any other law includes ‘civil union’ and ‘civil union partner’. Therefore a child born as a result of artificial fertilisation of one of the parties to a civil union is now treated exactly as a child whose parents are married.

Section 40 of the Children’s Act deal with the rights of children conceived through artificial insemination.  In terms of s 40(1)(a) whenever the gamete or gametes of any person other than a married person or his or her spouse have been used with the consent of both such spouses for the artificial fertilisation of one spouse, any child born of that spouse as a result of such artificial fertilisation must for all purposes be regarded to be the child of those spouses as if the gamete or gametes of those spouses had been used for such artificial fertilisation.

In terms of s 40(3) no right, responsibility, duty or obligation arises between a child born of a woman as a result of artificial fertilisation and any person whose gamete has or gametes have been used for such artificial fertilisation or the blood relations of that person, except when that person is the woman who gave birth to that child or that person was the husband of such woman at the time of such artificial fertilisation.

Thus the Children’s Act has recognised that a non-biological parent can acquire parental responsibilities and rights in certain circumstances without an application to Court.

What is the situation where the parties did not register a Civil Union

In terms of the Children’s Act, a child born as a result of artificial fertilisation of a  partner  in  a  same  sex  life  partnership  is  regarded  as  a  child  born  of unmarried persons. At first glance this appears to be in contradiction of the decision in the case of J v Director-General, Department of Home Affairs.

However, since the Civil Union Act 17 of 2006 came into operation on 1December 2006, it has been possible for same sex partners to enter into a civil union. If they choose not to do so, therefore, they are treated in the same way as unmarried partners.

An unmarried partner of the birth mother of a child conceived  by way of artificial fertilisation does not automatically acquire parental responsibilities and rights. This is so whether the partner is a man or a woman. The unmarried partner can acquire such rights through agreement (in terms of section 22) or via a court order.

It appears that this scheme was always the intention of the legislature. The South African Law Reform Commission (SALRC) Report on the Review of the Child Care Act (which was accompanied by the draft Children’s Bill) specifically discussed whether one partner in a same sex relationship should also automatically acquire parental responsibilities and rights in respect of his or her partner’s biological children. Although at that time Civil Unions by same-sex partners were not permitted under the law, the SALRC recommended that the partner in a domestic relationship can acquire parental responsibilities and rights either by agreement with his or her partner or on application to the court.


A party in a same-sex relationship, after breakup has no automatic parental responsibilities and rights in terms of sections 19-21 of the Children’s Act. Despite the equality provision of the Constitution, the law treats her differently from a biological father simply because she has no biological link to the child. This may not be unfair discrimination because biology plays a real and important role in the determination of parental responsibilities and rights.

The law also  fails to provide an Applicant with automatic parental responsibilities and rights via section 40, which deals with children conceived by artificial fertilisation. If the couple had entered a civil union, the Applicant would have enjoyed automatic parental responsibilities and rights. Despite the judgment of J v Director-General, Department of Home Affairs this differentiation may not amount to unfair discrimination because subsequent to the Civil Union Act coming into operation the Applicant and the respondent could have entered into a civil union, but did not do so. They are thus treated under section 40 as an unmarried couple, in the same way that a heterosexual unmarried couple is treated.

In relation to both of the abovementioned apparent impediments an approach to interpretation should be utilised that accords with the best interests of the child principle, and is within the power of the High Court as upper guardian of children.

Once  an Applicant  is applying  for a  court  order regarding parental responsibilities and rights, section 29(3) becomes applicable:

  • According to section 29(3) the court hearing an application contemplated in subsection (1) may grant the application unconditionally or on such conditions as it may determine or may refuse the application but an application may be granted only if it is in the best interests of the child.
  • Furthermore, section 29(4) provides that when considering such an application the court must be guided by the principles in chapter 2 of the Children’s Act to the extent that they are relevant.

A court should therefore pay careful consideration to the best interest of the child standard in section 7 – these are the issues that a court must have regard to when making a decision that affects the best interests of the child. Section 9 states that such best interests are of paramount consideration.

Over and above those considerations, the court should also take note of the special circumstances of each case, in particular for instance the fact that the parties planned the conception of the child together.

Only time will tell how our courts will interpret the issue.

My thanks to Advocates Julia Anderssen and Adv Rheta Maass from the Cape Town Advocates Bar for their valuable input.

About the author:

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.


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