Husbands in SA can now take wives’ surnames

Zuko Komisa

The Constitutional Court has ruled that husbands can now legally take their wives’ surnames, overturning a discriminatory law.
The landmark judgment found that the Births and Deaths Registration Act unfairly discriminated on the basis of gender.
The court has given parliament 24 months to amend the legislation, with the ruling taking immediate effect for couples wishing to change their names.

The Constitutional Court has delivered a landmark ruling, invalidating a long-standing law that prevented husbands from taking their wives’ surnames.

The decision, which came on Thursday, was hailed as a victory for gender equality.

The case was brought to the apex court by two couples, including Henry van der Merwe and Andreas Bornman, who argued that the existing legislation served no governmental purpose and discriminated against men.

The Constitutional Court agreed, with Judge Leona Theron declaring parts of the Births and Deaths Registration Act and its regulations unconstitutional.

During the proceedings, Judge Theron stated that the contested provisions of the Act “irrationally” violated Section 1(9) of the constitution. She highlighted the law’s discriminatory nature, saying it “unfairly discriminates on the grounds of gender by failing to offer a woman the right to have her spouse assume her surname.”

The court’s declaration of invalidity has been suspended for 24 months.

This allows the government time to amend the Act or introduce new legislation that aligns with the ruling. In the interim, Judge Theron ruled that the invalid provisions will not be applied to anyone wishing to take their spouse’s surname after marriage. The ruling also applies to those who wish to add a spouse’s surname to their own or resume a previous surname.

The ruling stems from a September 2024 Free State High Court judgment which also found the legislation discriminatory. The Minister of Home Affairs has been ordered to pay the legal costs of the two couples who brought the case.