Court asked to allow husband to take wife's surname
A case in which two men are seeking to take their wives’ surnames was heard in the Constitutional Court yesterday.
According to the Daily Maverick, the couples at the centre of the application claim in court papers that the Births and Deaths Registration Act of 1992, which provides for a change in the surname only when there is a change in the marital status of a woman, is unconstitutional.
Such laws and regulations perpetuate gender norms set by a ‘patriarchal society that entrenches gender inequality’, according to the applicants.
They called for Regulation 18(2)(a) of the Regulations on the Registration of Births and Deaths 2004, to be declared unconstitutional as it discriminates against men by failing to provide for the change of the marital status of a man.
The court was asked to give a confirmation order of a previous ruling in the Free State High Court, which in September 2024 ordered that a man could assume his wife’s surname or have a double-barrelled surname.
Both the Ministers of Home Affairs and Justice said they would respect the decision of the court.
Currently, the position is that the husband may not take his wife’s surname except after an application to the DG of the Department of Home Affairs, ‘which may or may not be declined depending on whether the director is of the view that good and sufficient reason exists’.
The applicants contend that the fact that men cannot take their wives’ surnames is inconsistent with provisions of sections nine and 10 of the Constitution, which deal with equality and dignity.
According to the court papers, the applicants state ‘gender discrimination, not only in our society but historically, is well established and entrenched’.
The applicants ask: ‘What legitimate government purpose is served by the differentiation in that the Act and regulations preclude the assumption of the surname of a woman by a man? There is no cogent, rationally defensible purpose that the applicants could find.’
This differentiation is tantamount to unfair discrimination and can no longer be tolerated, they say, according to the DM report.
The provisions of the Act and Regulations are not justifiable ‘in an open and democratic society based on human dignity, equality and freedom’, the applicants write and say further that ‘exemplary constitutional democracies entitle the husband, as a matter of law, to take his wife’s surname’.
According to court papers, the applicants in the case have agreed to give the President and Cabinet, with Parliament, 24 months to remedy the defects in the law by either amending legislation or creating new legislation to ensure that men are afforded the right of assumption of another surname.
Judgment was reserved.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
