We talk about our lived experience in the family court systems, do we understand the systems?

Amendments to the Children's Act have given married and unmarried fathers more rights based on equality.  The inherent financial inequality of mothers is not protected in any of the legislation yet it is widely accepted that women face greater economic inequality, it is as if women are being punished for expecting to be treated equally.  

The Commission for Gender Equality (CGE) was granted permission to participate in the Bannatyne v Bannatyne case in 2002 as an amicus curiae (they were not a party to the case but provided expert information to assist the court) yet nothing has changed in 2025.

• Evidence on the Maintenance System:The CGE's main contribution was presenting evidence about the challenges and shortcomings of the maintenance system in South Africa. This included information on the difficulties women and children face in obtaining and enforcing maintenance orders.

• Impact on Gender Equality:The CGE argued that these systemic failures disproportionately affect women and children, hindering the advancement of gender equality.

• Court Acknowledgment:The Constitutional Court recognized the CGE's evidence as valuable, stating that it provided essential context and insight into the issues at hand. The court specifically noted the CGE's contribution to understanding the frailties of the maintenance system.

  
  

It is critically important for Maintenance to be understood and enforced through a gender lens whilst we have equality laws there is no equity.  Our Maintenance Act does not take into account or make provision for the disproportionate cost or impacts of care work on the mother nor is this understood in the world of work.  In Australia the less involved the father is, the more he contributes financially.

Whilst the legislation deals with maintenance and contact separately they are related and impact one each other, the Fathers Right's movement advocated for 50/50 care so that they don't have to pay maintenance and in many case for primary so that they can claim maintenance.

To understand it better I have given some context.

1. The Patriarchal Foundation

Patriarchy in the South African child maintenance and co-parenting context of system of norms, institutions, and legal frameworks that:

• Prioritise the father’s legal rights (access/contact) over the mother’s practical realities (cost, caregiving, safety)

• Frame involvement in a child’s life as primarily about contact time rather than consistent support (financial, emotional, logistical).

• Place the onus of proving non-compliance or abuse on women — which drains their financial and emotional resources.

• Domestic violence is negated, mediation is a legal requirement in divorces, perpetuates harm due to pre-existing power imbalanes.

2. Historical Legal Context in South Africa

• Pre-1994:

  • The Guardianship Act and common law placed married fathers as the primary guardians, with mothers often needing consent for legal decisions.

  • Maintenance enforcement was weak and designed more around "voluntary" compliance.

  • Unmarried fathers had no automatic parental rights, but this often meant mothers carried the load without state support to enforce contributions.

• Post-1994 constitutional era:

  • Children’s Act 38 of 2005 reframed rights and responsibilities in gender-neutral terms — but the practical application still reflects patriarchal bias.

  • Emphasis on shared parental responsibility and parenting plans often imported from Western legal models, which presume cooperative co-parenting.

  • Maintenance Act 99 of 1998 improved enforcement powers (garnishee orders, attachment of assets) — but remains notoriously slow, under-resourced, and inconsistently applied.

3. Revolving Fathers and Co-Parenting in a Patriarchal System

A revolving father is one who dips in and out of a child’s life, often using the system’s gaps to their advantage:

• Co-Parenting & Parenting Plans

  • Legal language assumes both parents will act in good faith.

  • Parenting plans can be weaponised: fathers secure generous contact rights without meeting maintenance obligations, knowing that access and support are treated as separate issues.

  • Courts often err on the side of maintaining contact even if the father is inconsistent or fails to contribute financially.

• Protection of Fathers in Practice

  • Maintenance default does not automatically suspend access rights — a patriarchal hangover that separates “father’s rights” from “father’s responsibilities.”

  • Legal aid and court sympathy often tilt towards “keeping dads involved,” which can override the mother’s lived burden.

  • Revolving fathers may use court-ordered access to control the mother’s time, plans, and movements — a form of post-separation coercive control.

4. Disproportionate Impact on Women

Economic Impact:

• Women shoulder the default parent role — paying for school, healthcare, housing, clothing, food — while chasing maintenance through a clogged legal system.

• Career opportunities are limited due to caregiving duties, reducing earning capacity and long-term retirement security.

• Unpaid maintenance can push women into debt, poverty, or dependence on extended family.

Emotional & Psychological Impact:

• Constant stress of legal battles erodes mental health.

• Ongoing contact with an unreliable or abusive ex-partner prolongs trauma (coercive control continues post-separation).

• Stigma and victim-blaming — women are often accused of “withholding contact” when actually protecting the child’s welfare.

Social Impact:

• The myth of the “good father who tries” often overshadows the reality of inconsistent support.

• Communities sometimes see the man as a victim of a “vengeful ex,” reinforcing patriarchal narratives.

• Women’s advocacy for their children is reframed as “conflict” rather than protection.

5. Why the System Still Operates This Way

• Colonial Legal Legacy: Roman-Dutch and English common law influences prioritised paternal authority and treated financial obligations as negotiable rather than mandatory.

• Post-Apartheid Legal Reform: While the law is gender-neutral, its application still reflects ingrained gender roles — mothers as caregivers, fathers as visitors.

• Under-resourced Courts: Delays, backlogs, and corruption disproportionately affect those (mostly women) who rely on enforcement.

• Cultural Norms: The idea that a “father’s involvement” is inherently beneficial is rarely questioned, even when inconsistent or harmful.

6. Continuing the Cycle Today

• Maintenance courts focus on arrears collection which seldom has positive outcomes, not long-term compliance or structural reform.

• Parenting plans imported from Western models ignore South Africa’s high unemployment, mobility, and informal work realities — which make revolving father patterns easier to sustain.

• Gender-based violence laws don’t explicitly address economic abuse in the co-parenting context, leaving a critical gap.

The South African maintenance and co-parenting system is formally gender-neutral but functionally patriarchal. It privileges men’s right to remain “fathers” in name, even when their behaviour undermines the child’s wellbeing and burdens the mother. Women are left navigating legal, social, and economic systems designed to preserve fatherhood at all costs — with the cost borne almost entirely by them.