THE UNINVITED PARENT: HOW SOUTH AFRICAN LAW CREATED A CONSTITUTIONAL VACUUM ATTHE HEART OF THE FAMILY
A Legal Challenge to the Consequences of DE v RH and the Misapplication of Parental Authority in the Context of “Stepparents”
INTRODUCTION
In 2015, the Constitutional Court of South Africa abolished the third party delictual claim for adultery in DE v RH (CCT 182/14) [2015] ZACC 18. The judgment was presented as progressive development — a modernisation of the law in line with evolving constitutional values and the changing boni mores of society.
What the Court did not adequately address — and what this article contends — is the constitutional vacuum that abolition created. By removing the primary parent’s only legal remedy against the third party who entered and disrupted the family unit, the Court simultaneously left that third party entirely unaccountable before the law, while offering the primary parent no equivalent protective mechanism in its place.
Compounding this vacuum is a pervasive and legally unfounded belief — actively enforced in practice by co-parents and, critically, by the courts — that a new spouse acquires parental responsibilities and rights over their partner’s biological children by virtue of marriage alone.
They do not. They never have. Marriage confers zero parental rights over biological children who are not one’s own.
Yet primary parents — most frequently mothers — are routinely subjected to the de facto parental authority of a stepparent, enforced by a co-parent who either misunderstands the law or deliberately exploits the absence of any legal mechanism to challenge it. The law says nothing. And its silence is being weaponised.
This article argues that the combined effect of DE v RH, the absence of any regulatory framework governing the de facto influence of stepparents, and the mischaracterisation of the primary parent’s lawful refusal to consent as being contrary to the best interests of the child, constitutes a systemic constitutional failure — one that falls most heavily on mothers.
I. DE v RH: WHAT THE COURT ABOLISHED AND WHAT IT LEFT BEHIND
In DE v RH, the Constitutional Court unanimously held that the act of adultery by a third party lacks wrongfulness for purposes of delictual liability. Both the claim for contumelia — injury to personality and dignity — and the claim for loss of consortium were abolished. The Court reasoned that public policy, informed by constitutional values of privacy, dignity, and freedom, no longer supported civil liability for adultery.
Madlanga J held that the third party’s constitutional rights could not be disregarded simply because they had disrespected a marriage relationship. Mogoeng CJ, concurring, stated that it remains the primary responsibility of the parties to the marriage to maintain it, and that the law has no role in propping up a disintegrating marriage.
These propositions, in isolation, are defensible.
The difficulty arises from what the Court left entirely unaddressed. The innocent spouse — the primary parent — is left without any legal remedy against the person whose conduct contributed directly to the destruction of the family unit. No damages. No recognition of harm. No accountability.
The third party walks away legally unscathed.
And then, in many cases, moves into the home where the children of that marriage are being raised.
II. THE STEPPARENT HAS NO PARENTAL RIGHTS: THE LAW IS CLEAR
This must be stated without qualification, because it is being contradicted in practice with alarming frequency:
A person who marries a biological parent acquires no parental responsibilities or rights over that parent’s biological children. None. Marriage is not a source of parental authority in South African law.
The Children’s Act 38 of 2005 governs parental responsibilities and rights comprehensively.
Section 18 defines what parental responsibilities and rights consist of — care, contact, guardianship, and maintenance. Section 19 provides that the mother of a child automatically has full parental responsibilities and rights. Section 20 provides for the father in specified circumstances. Section 21 provides for unmarried fathers who meet defined criteria.
Nowhere in the Children’s Act does marriage to a biological parent confer parental responsibilities and rights on a stepparent. A stepparent may acquire parental responsibilities and rights only through one of two mechanisms — a formal parental responsibilities and rights agreement in terms of section 22 of the Children’s Act, or a court order. Both mechanisms require the consent of every person who holds parental responsibilities and rights in respect of the child concerned.
This means that the primary parent’s consent is not optional. It is a legal prerequisite. A section 22 agreement concluded without that consent is invalid. A court order requires judicial scrutiny and must be consistent with the best interests of the child — a standard that cannot be satisfied by ignoring the position and rights of the primary parent.
The co-parent who enforces the authority of their new spouse over the biological children of the primary parent — whether by allowing that spouse to discipline, direct, restrict, or make decisions about those children — is not exercising a legal right. They are acting outside the law. And the new spouse who purports to exercise such authority has no legal basis upon which to do so.
III. THE CONSENT REQUIREMENT IS NOT ALIENATION — IT IS THE EXERCISE OF PARENTAL RIGHTS
A critical and deliberate mischaracterisation pervades high-conflict co-parenting disputes: the primary parent’s refusal to consent to a section 22 agreement conferring rights on a stepparent is routinely framed as obstruction, alienation, or conduct contrary to the best interests of the child. This framing is legally wrong and constitutionally dangerous.
The right to withhold consent is not the alienation of parental rights. It is the exercise of them. Section 18 of the Children’s Act vests parental responsibilities and rights in the biological parent. Those rights include the right to make decisions about who exercises authority over the child. A parent who declines to confer those rights on a third party is not obstructing the child’s best interests — they are protecting the integrity of the parent-child relationship that the Constitution itself recognises and protects.
Section 28(2) of the Constitution provides that the best interests of the child are of paramount importance in every matter concerning the child. That standard does not — and cannot — be interpreted to mean that the primary parent’s constitutional rights are subordinated to the preferences of the co-parent’s new spouse. To hold otherwise would be to use the best interests standard as an instrument of dispossession against the very parent most likely to be the child’s primary caregiver.
The Constitutional Court in S v M (CCT 53/06) [2007] ZACC 18 held that a truly principled child-centred approach requires a close and individualised examination of the real-life situation of the particular child involved. A formulaic application of the best interests principle that systematically disadvantages the primary parent — typically the mother — in favour of accommodating a stepparent’s de facto presence is not a principled approach. It is a distortion of the standard.
IV. THE CONSTITUTIONAL VACUUM: THREE COMPOUNDING FAILURES
The legal landscape as it currently stands produces the following compounding constitutional failures:
First — the removal of accountability without replacement
DE v RH removed the primary parent’s delictual remedy against the third party. That remedy was imperfect and its abolition may have been constitutionally defensible on narrow grounds. What is not defensible is the absence of any replacement mechanism — any legal instrument by which the primary parent can hold a third party accountable for the harm caused to the family unit and, critically, to the parent-child relationship.
The innocent parent’s rights to dignity under section 10 and to the integrity of their family life are constitutionally recognised. The abolition of the delictual claim without any protective substitute engages those rights directly and leaves them without practical remedy.
Second — the de facto authority of a legally invisible person
The stepparent has no legal rights over the biological children of the primary parent. Yet in shared parenting arrangements, that stepparent is present in the household during the co-parent’s parenting time, exercises day-to-day authority over those children, makes decisions about their routine, discipline, and welfare, and does so entirely outside any legal framework and without any accountability to the primary parent.
The law does not regulate this. It does not require the co-parent to consult the primary parent before conferring de facto authority on a new spouse. It does not prohibit the new spouse from exercising that authority. It does not provide the primary parent with any mechanism to challenge it short of expensive and emotionally destructive litigation.
The result is that a legally invisible person exercises real and daily authority over children to whom they have no legal relationship — and the primary parent, whose rights are constitutionally protected, has no practical remedy.
Third — the systematic mischaracterisation of the primary parent’s position
Courts, family advocates, and mediators routinely characterise the primary parent’s resistance to the stepparent’s de facto role as high-conflict behaviour, parental alienation, or conduct contrary to the best interests of the child. This characterisation is both factually incorrect and constitutionally impermissible.
The primary parent who objects to a legally unqualified person exercising authority over their children is not the source of conflict. They are the party whose rights are being violated. To penalise them for asserting those rights — which is what the high-conflict label effectively does — is to use the judicial process as an instrument of dispossession.
This falls most heavily on mothers. In the majority of shared parenting arrangements in South Africa, the mother is the primary caregiver. It is her authority that is most frequently undermined. It is her consent that is most frequently bypassed. And it is she who is most frequently characterised as obstructive when she objects.
V. THE GENDERED DIMENSION: A STRUCTURAL BIAS THE LAW REFUSES TO NAME
The impact of this legal vacuum is not gender-neutral. It is systematically gendered and the law’s refusal to acknowledge this does not make it less so. The primary caregiver in the overwhelming majority of South African families is the mother.
When a marriage breaks down and a co-parent remarries, it is the mother’s parental authority that is most frequently challenged by the arrival of a new spouse in the children’s lives. It is her role that is most frequently undermined. It is her objections that are most frequently dismissed.
The Constitutional Court acknowledged in DE v RH that the origins of the adultery claim lay in patriarchy — that historically only men could bring the claim and wives were treated as property. The abolition of the claim was justified in part on this basis.
The irony is acute. The Court abolished a patriarchal remedy in the name of constitutional values — and in doing so, removed the one legal instrument available to a primary parent, most frequently a woman, to hold a third party accountable for harm to her family. The progressive framing of the judgment conceals a regressive practical consequence that falls disproportionately on women.
Section 9 of the Constitution guarantees the right to equality. Section 9(3) prohibits unfair discrimination on the basis of sex and gender. A legal framework that systematically exposes mothers to the unchecked de facto authority of stepparents, strips them of legal remedies, and then penalises them for asserting their rights, engages the equality guarantee directly. It has not been adequately challenged on this basis. It should be.
VI. WHAT THE LAW MUST DO
The following reforms are identified as constitutionally necessary:
1. Legislative regulation of stepparent de facto authority
The Children’s Act must be amended to provide a regulatory framework governing the exercise of de facto parental authority by stepparents during co-parenting time. That framework must include a prohibition on the exercise of parental authority by a person who has not acquired parental responsibilities and rights through the mechanisms provided in the Act, and must provide the primary parent with a direct enforcement mechanism.
2. Affirmation of the consent requirement as an absolute prerequisite
Courts and family advocates must affirm, consistently and without equivocation, that no section 22 agreement is valid without the consent of every holder of parental responsibilities and rights. The primary parent’s refusal to consent must be recognised as the lawful exercise of a constitutional right — not as obstruction or alienation.
3. The development of a protective remedy to replace the abolished delictual claim
The Constitutional Court’s development of the common law in DE v RH created a gap that has not been filled. The legislature or the courts must develop a remedy — whether delictual, statutory, or equitable — that provides the primary parent with legal recourse against a third party whose conduct causes measurable harm to the parent-child relationship and to the primary parent’s constitutional rights.
4. Judicial recognition of the gendered impact
Courts must engage explicitly with the gendered dimension of stepparent authority disputes. The systematic characterisation of primary mothers as obstructive or high-conflict when they assert their parental rights must be recognised for what it is — a judicial bias that compounds the constitutional failure identified in this article.
5. A formal constitutional challenge
The absence of any regulatory framework governing stepparent de facto authority, combined with the abolition of the delictual remedy in DE v RH, constitutes a failure by the state to fulfil its positive obligations under sections 9, 10, 12 and 28 of the Constitution. This failure is constitutionally challengeable and should be challenged.
CONCLUSION
The law created a person with no rights and no accountability — the stepparent — and then left the primary parent without any instrument to challenge that person’s presence and influence in their children’s lives. It did so in the name of constitutional values: privacy, dignity, changing boni mores. Thosevalues are legitimate. But they were applied asymmetrically. The third party’s rights were protected. The primary parent’s rights were not.
Marriage does not confer parental rights. It never has. A spouse who believes otherwise —and a co-parent who enforces that belief — is not exercising a legal entitlement. They are committing a daily violation of the primary parent’s constitutional rights.
The law must say this clearly. Courts must enforce it consistently. And where the law remains silent — as it currently does — it must be compelled to speak.
TABLE OF AUTHORITIES
Constitutional Provisions
Constitution of the Republic of South Africa, 1996: sections 9, 10, 12, 14, 28, 36, 39
Legislation
Children’s Act 38 of 2005: sections 18, 19, 20, 21, 22
South African Case Law
DE v RH (CCT 182/14) [2015] ZACC 18; 2015 (5) SA 83 (CC)
RH v DE 2014 (6) SA 436 (SCA)
S v M (CCT 53/06) [2007] ZACC 18
S v Makwanyane and Another 1995 (3) SA 391 (CC)
Bernstein and Others v Bester NO and Others 1996 (2) SA 751 (CC)
International Instruments
United Nations Convention on the Rights of the Child, 1989 (Articles 3, 9, 18)
This article is written from a South African legal perspective. It does not constitute legal
advice. It is intended as a contribution to public legal discourse and as the basis for
legislative and constitutional challenge.
