John Adoyi, PBA Journalism Mentee
South Africa’s Constitutional Court has ruled that men can now legally adopt their wives’ surnames, striking down provisions of a decades-old law that barred husbands from doing so. The ruling, delivered on Thursday, declared parts of the Births and Deaths Registration Act of 1992 unconstitutional, describing them as discriminatory and inconsistent with the country’s Bill of Rights. The court found that the law unfairly privileged women by allowing only wives, not husbands, to change their surnames after marriage.
The case was brought by two married couples who challenged the law after being denied the right to assume or combine surnames through marriage. Henry vander Merwe, who wished to take his wife Jana Jordaan’s surname, and Andreas Bornman, who wanted to hyphenate his surname with that of his wife Jess Donnelly-Bornman, were both blocked by the country’s Department of Home Affairs under the current legislation.
Join our WhatsApp ChannelA lower court, the Free State High Court, had ruled in September 2024 that the provisions were unconstitutional, but the matter was referred to the Constitutional Court for confirmation, as required for cases striking down national laws. Justice Leona Theron, writing for the majority, said the sections of the Act “unfairly discriminate on the grounds of gender” by assuming that only a woman might wish to change her surname upon marriage. The court said this outdated assumption was rooted in patriarchal traditions that have no place in modern South Africa.
The Constitutional Court gave Parliament 24 months to amend the legislation. In the meantime, it issued an interim remedy known as “reading-in,” which allows men to apply to take their wives’ surnames or to create double-barrelled names under the same process currently available to women.
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The Minister of Home Affairs was also ordered to pay the legal costs of the applicants. Under the old provisions of the Act and its regulations, only women were explicitly permitted to assume their husband’s surname after marriage. This reflected deeply entrenched social norms dating back to colonial and apartheid-era South Africa, where family names were tied to paternal lineage.
The plaintiffs argued that these rules served no legitimate government purpose and instead reinforced gender inequality. Internationally, many countries, including Canada, the United States, and the United Kingdom, already allow either spouse to change their surname freely after marriage.
Parliament must now amend the Births and Deaths Registration Act within the next two years to permanently align the law with the Constitution. If lawmakers fail to act, the interim arrangement ordered by the court will remain in effect.
For now, South African couples who wish for the husband to take the wife’s surname or for both to adopt a shared surname can apply to do so immediately under the new court-ordered framework.
The ruling is seen as a significant step toward gender equality in South Africa, giving couples the freedom to choose how they define their shared identities in marriage. It also marks another milestone in the Constitutional Court’s ongoing efforts to strike down laws that perpetuate outdated and unequal treatment.
