Husbands Can Now Legally Take Wives’ Surnames — Court Declares Law Gender-Biased
A female judge is listening to two lawyers argue their cases
South Africa’s Constitutional Court has ruled that husbands may take the surnames of their wives, overturning a law that previously barred them from doing so. The ruling follows a challenge by two couples who argued that the law amounted to gender-based discrimination.
Henry van der Merwe was denied the right to take the surname of his wife, Jana Jordaan, while Andreas Nicolas Bornman could not hyphenate his surname to include that of his wife, Jess Donnelly-Bornman, reports SABC.
The Constitutional Court confirmed a prior High Court ruling from September 2024, declaring sections 26(1)A to C of the Births and Deaths Registration Act 51 of 1992 unconstitutional. The court held that the law discriminated on the basis of gender, denying men the same rights afforded to women regarding surname changes after marriage.
Parliament is now tasked with amending the Births and Deaths Registration Act and its regulations to align with the ruling. Until legislative changes are made, the court ordered that the current provisions will not apply to cases where:
- A person assumes the surname of a spouse after marriage or resumes a surname previously held.
- A married, divorced, or widowed person resumes or adds to a previously held surname.
The ruling was welcomed as a step toward gender equality and recognition of personal choice. The Free State Society of Advocates supported the couples, noting that the law perpetuated harmful stereotypes by restricting men’s surname options.
In the cases cited, Henry van der Merwe wished to adopt his wife’s surname to honour her late parents, but Home Affairs systems did not permit it, leaving the couple’s children with Van der Merwe’s surname. Similarly, Andreas Bornman was unable to adopt a double-barrelled surname despite his wife being allowed to do so.
The Constitutional Court has suspended the declaration of invalidity for 24 months to allow Parliament to amend the law or enact new legislation to safeguard the rights of all married, divorced, and widowed individuals.
Justice Minister Mamoloko Kubayi and Home Affairs Minister Leon Schreiber did not oppose the application, underscoring the government’s support for the principle of equality in marital name changes.
