South Africa’s Constitutional Court has struck down a decades-old restriction on surnames, ruling that men can now legally adopt the surnames of their wives. The court found parts of the Births and Deaths Registration Act unconstitutional because they discriminated on the basis of gender.
The decision, handed down on Thursday, marks a significant step toward gender equality in family law, dismantling a system rooted in colonial and patriarchal traditions.
Why Was the Law Challenged?
The case stemmed from two separate couples who ran into bureaucratic roadblocks at the Department of Home Affairs:
- Henry van der Merwe was prevented from taking the surname of his wife, Jana Jordaan.
- Andreas Nicolaas Bornman was barred from hyphenating his surname to include his wife’s, Jess Donnelly-Bornman.
Both men argued that the rules were discriminatory, forcing couples to accept only one direction of surname changes—wives adopting husbands’ names—while denying men the same right.
The matter was heard on March 4, with judgment delivered this week. The respondents included the Minister of Home Affairs and the Minister of Justice and Constitutional Development.
What Did the Court Say?
In its ruling, the Constitutional Court made clear that the surname rules reflected outdated and unfair gender norms:
“The tradition of women taking their husbands’ surname was a colonial import. This practice reinforced patriarchal norms where women were seen as subordinate to their husbands and expected to assume their identity,” the court stated.
The court suspended its declaration of invalidity for 24 months, giving Parliament time to amend the legislation. Lawmakers can either adjust the Births and Deaths Registration Act or introduce new laws that ensure surname equality for all.
In the meantime, the Department of Home Affairs has been instructed to honour requests from husbands wishing to assume their wives’ surnames.
Why Does This Ruling Matter?
This judgment is about more than names—it’s about equality. By overturning gender-based restrictions, the Constitutional Court:
- Affirms constitutional protections against discrimination.
- Challenges patriarchal traditions that have long dictated marital identity.
- Aligns South Africa with global trends, where many countries now allow flexible surname choices for both spouses.
Legal experts note that the ruling is consistent with South Africa’s broader constitutional vision, which emphasizes human dignity, freedom, and equality.
What Happens Next?
Parliament has two years to update the law. Until then:
- Husbands can legally adopt their wives’ surnames.
- Couples can choose hyphenated or blended names.
- The Department of Home Affairs must process these applications.
Additionally, the Minister of Home Affairs was ordered to pay the legal costs of the applicants, including fees for two counsel.
TL;DR (Summary)
South Africa’s Constitutional Court has ruled that husbands can legally take their wives’ surnames, declaring sections of the current law unconstitutional. The decision dismantles a colonial-era tradition that forced surname changes in only one direction—women adopting men’s names. Parliament has 24 months to amend the legislation, but the Department of Home Affairs must immediately allow husbands to assume their wives’ surnames.
