• Source:JND
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Weird Facts:  In a landmark judgment, South Africa's Constitutional Court held that men can now adopt their wives' surnames legally, overturning a three-decade-old law that permitted only women to take their husband's surname. The decision has been viewed as a major triumph for gender equality and constitutional rights in South Africa.

Court Strikes Down Discriminatory Law

The Constitutional Court upheld that sections 26(1)(a)–(c) of the Births and Deaths Registration Act of 1992 were invalid. These provisions had excluded men automatically from adopting the surnames of their wives, whereas women were not subject to such exclusion when they assumed the name of their husband.

The courts decided that this constituted unfair gender discrimination, contrary to the equality clause in Section 9(1) of the South African Constitution. The court stated that the legislation "irrationally and unfairly discriminated on the basis of gender" and reinforced negative stereotypes regarding marriage and identity.

Couples Denied Equal Rights

The issue was taken to court by two couples who objected that the law was patriarchal and outdated. In one such case, Henry van der Merwe was denied the ability to inherit the surname of his wife, Jana Jordaan, when the couple wanted to pay tribute to her late parents. Home Affairs officials informed the couple that the system was unable to handle such a request, leaving them to maintain different surnames.

In a second case, Jess Donnelly was able to legally change her name to Donnelly-Bornman upon marriage, but her husband, Andreas Bornman, was denied permission to take the same double-barrelled name. The officials offered no good reason for doing so, and the couple was left frustrated.

The two couples then approached the Free State High Court in September 2024, which ruled that the provisions were unconstitutional. The matter was then referred to the Constitutional Court for validation. The court has delayed its order for 24 months to allow Parliament to revise the law. In the meantime, the offending provisions shall not be applied in those instances where:

• A person takes on his/her spouse's surname on marriage.
• A divorced or widowed person resumes a surname previously held.
• A person takes on an earlier surname in addition to the one taken on marriage.

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Broader Implications

Up to now, South African men who wanted to have their surname changed were required to approach the Director-General of Home Affairs and had no certainty of it being approved. With this ruling, women and men will be able to enjoy equal rights regarding how they would like to organize their family names.

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The decision is being seen as another example of the Constitutional Court’s role in advancing equality and protecting fundamental rights, nearly three decades after South Africa adopted its democratic constitution.