Two men have been given the green light to use the surnames of their wives after Free State High Court (Bloemfontein) Judge Joseph Mhlambi overturned the provisions of an outdated law which prohibited this.

A Pretoria News report notes a section of the Births and Registration Act, which prohibited a woman from having her husband taking on her surname upon marriage, was found to be discriminatory on the ground of gender.

It was argued on behalf of both couples that the Act and the regulations perpetuated gender norms set by a patriarchal society, that entrenched gender inequality and differentiated based on sex and gender.

The applicants argued that the Act had retained an archaic and patriarchal default position that only women were entitled, as of right, to assume a different surname upon marriage.

The court was told that the limitation was not justifiable as it perpetuated gender inequality and robbed individuals of their identity and autonomy.

Similarly, by restricting a man's right to assume the wife's surname, the law violated the principles of gender equality and perpetuated harmful stereotypes, as men were denied a choice that was available to women.

It was further argued that the law failed to recognise modern societal values like gender equality and fluidity in identity choices, and reinforced the norm that men must conform to traditional masculine norms.

Mhlambi found that the provisions of the Act failed to recognise modern societal values – including gender equality, fluidity in identity choices, and the rejection of rigid gender roles. Updating the law to reflect these values and promote a more inclusive and equitable society was essential, he said.

‘In the premises, the limitation does not meet the “rational connection” and “proportionality” tests, rendering the limitation unjustifiable,’ the judge said.

Full Pretoria News report in The Star

Judgment