The Constitutional Court has ruled that South African men can now automatically take their wives’ surnames, declaring part of the Births and Deaths Registration Act unconstitutional.
A Law that treated men and women differently
Previously, Section 26(1)(a) to (c) of the 1992 Act gave women special rights when it came to surnames. Women could take their husband’s surname after marriage,
go back to their previous surname after divorce or widowhood, oradd a previously used surname to their new married name.
Men, however, did not enjoy the same rights. They were forced to go through a longer process by applying directly to the Director-General of Home Affairs if they wanted to change their surname.
The Constitutional Court has now confirmed that this amounted to unfair gender discrimination because it gave women an automatic, simplified process, but not men.
Couples who challenged the Law
This matter was taken to court by two couples, Jana Jordaan and Henry Van Der Merwe,and Jess Donnelly-Bornman and Andreas Nicolas Bornman.Van Der Merwe had been refused the chance to take Jordaan’s surname, while Bornman was denied permission to hyphenate his surname with Donnelly’s.
They first won their case in the Free State Division of the High Court. However, since the issue was constitutional, the ruling needed confirmation by the Constitutional Court before it could become law.
Why the Court declared it unconstitutional
The couples argued that the law violated the equality clause in the Constitution, creating an unnecessary gender divide.
While the provision may originally have been designed to make life easier for women in the past, the applicants said it now only reinforced old-fashioned gender stereotypes about the roles of men and women in families.
The Constitutional Court agreed and confirmed the invalidity of the section.
What this means going forward
Husbands in South Africa can now legally and automatically take their wives’ surnames after marriage, just as wives have been able to do for decades.
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