Big changes for surnames in South Africa

The Constitutional Court ruling on men taking wives’ surnames has sparked nationwide attention as South Africa moves toward greater gender equality. The court declared certain sections of the Births and Deaths Registration Act unconstitutional, empowering men to assume their wives’ surnames without bureaucratic hurdles.

High Court Precedent and Background

The matter first reached the Constitutional Court in March 2025, after a ruling in the Free State High Court in September 2024. Previously, the High Court recognized that a man could legally assume his wife’s surname or adopt a double-barrelled surname following marriage. Sections 26(1)a to c of the Births and Deaths Registration Act were ruled unconstitutional at that stage, setting the stage for a landmark surname change ruling.

Under the existing law, a husband seeking to take his wife’s surname had to apply to the Director-General of Home Affairs. Even with an application, approval was not guaranteed. This unequal system highlighted the discriminatory aspects of the law, prompting judicial intervention.

Real-Life Cases Highlighting Systemic Issues

The ruling was informed by real-life challenges faced by couples such as Jana Jordaan and Henry van der Merwe. They wished to honor Jordaan’s deceased parents by adopting her surname after marriage. Unfortunately, Home Affairs’ systems did not allow the change. As a result, Jordaan retained her surname, and their children were registered under Van der Merwe.

Similarly, Jess Donnelly and Andreas Bornman faced the same issue. Donnelly successfully adopted a double-barrelled surname, Donnelly-Bornman, but Bornman could not match the change. No explanation was provided, reflecting systemic failures that the Constitutional Court sought to address.

Unconstitutional Sections and Gender Discrimination

The court identified that sections 26(1)A to C of the Births and Deaths Registration Act violated Section 9(1) of the Constitution by discriminating on the basis of gender. Currently, married women can change their surnames to match their husbands’, while men face legal and administrative obstacles.

This ruling confirms that the law failed to allow men, whether married, divorced, or widowed, to resume a previous surname or add to an assumed surname after marriage. The court emphasized that these restrictions were irrational and unfair, undermining gender equality and personal rights.

Legislative Remedies and 24-Month Suspension

The court declared the sections invalid but suspended the ruling for 24 months, giving Parliament time to amend the law or pass new legislation to comply with constitutional standards.

Pending new legislation, Section 26(1) will not apply in situations where:

• A person assumes the surname of their spouse after marriage or resumes a surname previously held.

• Married, divorced, widowed, or widowers resume a surname held at another time.

• Individuals add a prior surname to the one assumed after marriage.

Should Parliament fail to remedy the defects within the 24-month period, the court’s order will continue to operate, ensuring men can freely change surnames in line with constitutional rights.

Implications for Surname Changes in South Africa

This Constitutional Court ruling on men taking wives’ surnames sets a precedent that strengthens personal freedom and equality in marriage. It also highlights the need for Home Affairs to modernize administrative systems to allow smooth surname changes without discrimination.

Advocates for gender equality have praised the ruling, emphasizing that a person’s surname should not be limited by outdated legal conventions. Legal experts note that the decision may influence other areas where administrative rules inadvertently discriminate on gender grounds.

Future Outlook for Births and Deaths Registration Act

Parliament now faces the responsibility to align the Births and Deaths Registration Act with constitutional principles. Proposed amendments may include simplified procedures for surname changes and clearer guidelines for double-barrelled surnames.

For South African couples, this ruling ensures fairness and respect for personal choice. Men can now consider adopting their wives’ surnames without fear of administrative roadblocks or gender-based discrimination.

Conclusion

The Constitutional Court ruling on men taking wives’ surnames represents a historic step toward gender equality in South Africa. By striking down unconstitutional sections of the Births and Deaths Registration Act, the court has affirmed the right of individuals to choose their surnames freely, honoring personal, cultural, and familial traditions.

This ruling not only addresses systemic inequality but also modernizes South African legal norms surrounding marriage and identity. As Parliament works to implement corrective legislation, couples can look forward to a future where surname choices reflect mutual respect and equality.