Men can now assume their wives' surnames after the Constitutional Court ruled yesterday that section 26(1) of the Registration of Births and Deaths Act is unconstitutional as it unfairly discriminates on the basis of gender.

Judge Leona Theron ruled that the Act is unfair as it fails to afford men the right to assume their wives’ surname. 

TimesLIVE reports that the ruling comes after two Free State women and their husbands challenged the constitutionality of the Act and won in the lower court. They then decided to take the matter to the apex court, saying the Act is, among other things, archaic and patriarchal.

The first couple, Jana Jordaan and Henry van der Merwe, were married in 2021 but were unable to have the husband assume the wife's surname due to Department of Home Affairs restrictions.

Their daughter carries a surname they did not intend to be their family name.

The second couple, Jess Donnelly-Bornman and Andreas Bornman, married in 2022 and faced similar issues when trying to have the husband adopt a hyphenated surname combining both their surnames.

The two couples argued that the Act and the regulations perpetuate gender norms set by a patriarchal society that entrenches gender inequality. They sought to have relevant sections of the Act and regulations declared unconstitutional for unfairly discriminating against men in surname changes related to marriage.

They argued that the current law is incompatible with constitutional values of equality regardless of sex, gender or marital status. They then approached the Free State High Court where Judge Joseph Mhlambi ruled in their favour.

The Free State Society of Advocates joined the challenge as amicus curiae and argued that by restricting a man's right to assume their wife's surname, the law violated the principles of gender equality and perpetuated harmful stereotypes, as men are denied a choice that is available to women.

The court was satisfied that the provisions are inconsistent with the Constitution due to gender-based discrimination, which negatively affected both men and women.

In the case of men, they are deprived of the ability to take their wives’ surnames if they so wish.

‘In the case of women, the effects of this scheme are far more insidious. It is not merely so that they are deprived of the right to have their surnames serve as the family surname where their husbands wish to take that surname. It also reinforces patriarchal gender norms, which prescribe how women may express their identity, and it makes this expression relational to their husband, as a governmental and cultural default,’ the ruling stated, according to TimesLIVE.

The court found that this limitation of equality cannot be sustained under section 36 of the Constitution.

Section 26(1)(a)-(c) of the Births and Deaths Registration Act and regulation 18(2)(a) of the related regulations were declared unconstitutional.

The declaration of invalidity was suspended for 24 months to enable the President and his Cabinet, together with Parliament, to remedy the defects by either amending existing legislation, or passing new legislation within two years to ensure that male people are afforded the right of assumption of another surname.

Full TimesLIVE report

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