South Africa’s Constitutional Court has ruled that men can legally take their wife’s surname after marriage. The Court struck down provisions of the Births and Deaths Registration Act that only allowed women to assume their husband’s surname.
Why the Case Matters
The ruling promotes gender equality by removing laws rooted in colonial and apartheid-era customs. It allows men to take their wife’s surname or create a hyphenated surname.
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Couples Who Challenged the Law
Two couples challenged the outdated provisions:
- Henry van der Merwe wanted to adopt his wife Jana Jordaan’s surname.
- Andreas Nicolas Bornman sought to hyphenate his surname with his wife Jess Donnelly-Bornman’s.
Both men were denied by Home Affairs before the case reached the courts.
Court Declares the Law Discriminatory
Justice Leona Theron delivered the judgment, stating the restriction “served no legitimate government purpose”. The Court declared that denying men this choice unfairly discriminated on the basis of gender.
Colonial Influence on Surnames
The Court emphasised that the law was a “colonial import”. In many African traditions, women retained their birth names after marriage, and children often carried their mother’s clan name. European colonisers and missionaries changed this practice.
Government Did Not Oppose the Challenge
Both the Minister of Home Affairs, Leon Schreiber, and the Minister of Justice, Mamoloko Kubayi, supported the couple’s case. They agreed the law was outdated and inconsistent with constitutional values.
Interim Remedy for Surname Applications
The Court suspended the invalidity for 24 months, giving Parliament time to amend the Act. However, it provided an interim solution. Men may now immediately apply at Home Affairs to adopt their wife’s surname or hyphenate. This mirrors the process already available to women.
Expert Opinions on Gender Equality
Legal experts welcomed the decision. Professor Pierre de Vos of the University of Cape Town previously argued that section 26 of the Act unfairly discriminated against individuals on the basis of gender.
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Advancing Equality in South Africa
The Court noted that while South Africa has made “significant advancement” in gender equality, discriminatory laws still exist. This ruling removes a harmful stereotype that assumes only women should change their names.
Impact on Families and Culture
For many couples, this ruling is not just legal but personal. It recognises modern partnerships where identity, equality, and shared family names matter. At the same time, the Court respected African traditions that valued maternal naming practices.
Next Steps for Parliament
Parliament now has two years to amend the Births and Deaths Registration Act. Until then, Home Affairs must implement the interim order and process applications from men on an equal footing with women.
What This Means for Couples
Any spouse may now assume the other’s surname after marriage. Couples can also choose a double-barreled surname. This change ensures fairness and offers families more flexibility in shaping their identities.
